The royal pardon, an absolute prerogative power — Kevin De Rozario

JANUARY 10 — The dethroning of Barisan Nasional (and its predecessor, the Alliance Party), after almost 61 years as the governing coalition of Malaysia, was Malaysia’s biggest news of 2018.

Hot on its heels however was the granting of a royal pardon by the Yang di-Pertuan Agong to Datuk Seri Anwar Ibrahim a long week after the declaration of a new government. The bestowing of the royal pardon brought an end to a tumultuous two decades in the lives of Anwar and his family which had seen him go in and out of prison on various charges.

The royal pardon also enabled Anwar to contest and be elected as the Member of Parliament for Port Dickson (a few hundred kilometres from his usual stomping ground in Permatang Pauh where he had served as a Member of Parliament for six terms) through a by-election engineered to bring him back to the House of Representatives. However, his journey back to the august House brought many challenges, one of which was the process and effect of the royal pardon which he had received. This challenge brought into sharp focus the pardon process, which shall be discussed in this article.

The power of the royal pardon

The power to grant a royal pardon is largely embodied in Article 42(1) of the Federal Constitution which provides:

“The Yang di-Pertuan Agong has power to grant pardons, reprieves and respites in respect of all offences which have been tried by court-martial and all offences committed in the Federal Territories of Kuala Lumpur, Labuan and Putrajaya; and the Ruler or Yang di-Pertua Negeri of a State has power to grant pardons, reprieves and respites in respect of all other offences committed in his State”.

A reading of Article 42(1) dispels two common misconceptions about the royal pardon. First, that the power of clemency is vested solely in the Yang di-Pertuan Agong. Instead, His Majesty’s power is restricted to offences tried by court martial or committed in the three Federal Territories. For offences committed in the other States, this power lies with the Ruler or Yang di-Pertua Negeri of the State in which the offence is committed. For example, a petition for clemency for an offence committed in Georgetown would be in the hands of the Yang di-Pertua Negeri of Pulau Pinang and not the Yang di-Pertuan Agong.

Second, although the power to pardon is commonly described as a ‘royal pardon’, it is not always the case as the Yang di-Pertua Negeri of Sabah, Sarawak, Penang and Malacca are not of royal lineage.

It is interesting to note that the powers set out in Article 42(1) of the Federal Constitution are subject to four qualifications. The first is contained in Article 42(10) which provides that the powers to grant pardons or to commute sentences imposed by any Syariah courts in Malacca, Penang, Sabah, Sarawak or the Federal Territories shall be exercisable by the Yang di-Pertuan Agong as the Head of the religion of Islam in those states.

The remaining three qualifications are set out in Article 42(12) of the Federal Constitution which provides as follows:

1. where the powers are to be exercised by the Yang di-Pertua Negeri of a State in respect of himself or his wife, son or daughter, such powers shall be exercised by the Yang Di-Pertuan Agong;
2. where the powers are to be exercised by the Yang di-Pertuan Agong or the Ruler of a State in respect of his son or daughter, such powers shall be exercised by the Conference of Rulers; and
3. where the powers are to be exercised in respect of the Yang di-Pertuan Agong, the Ruler of a State or his consort, such powers shall be exercised by a Ruler of a State to be nominated by the Conference of Rulers.

In exercising the executive power to grant a royal pardon, the Yang di-Pertuan Agong/Ruler/Yang di-Pertua Negeri is required to consider the advice of the designated consultative body, the Pardons Board.

In addition, the Yang di-Pertuan Agong’s powers to grant pardons and remissions under the Federal Constitution were extended to security offences pursuant to the Essential (Security Cases) Regulations 1975. These powers ceased in 2011 with the annulment of the Proclamation of Emergency issued on 15 May 1969.

Avenues to a royal pardon

There are several means by which a person who has been convicted of an offence may be considered for a royal pardon. Where a person is sentenced to death upon his conviction, section 281(c) of the Criminal Procedure Code imposes an obligation on the Mentri Besar of the State in which the offence was committed to submit details of the conviction and sentence to the Ruler of the relevant State for consideration under Article 42 of the Constitution.

In the case of a person who is serving a long term of imprisonment, Regulation 54 of the Prison Regulations 2000 requires the Commissioner General of Prison to submit a report to the Mentri Besar of the State in which the offence was committed (or to the Yang di-Pertuan Agong in the case of a security offence or court martial) for consideration under Article 42 of the Constitution after the person has completed four, eight, twelve or sixteen years of imprisonment and every subsequent year thereafter.

A person may initiate a petition for clemency under Regulation 113 of the Prisons Regulations 2000. The first petition may be submitted as soon as practicable after his conviction. Thereafter, he may submit a second petition three years after the date of conviction and further petitions at two-year intervals, unless there are special circumstances which should be brought to the notice of the Yang di-Pertuan Agong/Ruler/Yang di-Pertua Negeri.

The Pardons Board

Article 42(5) of the Federal Constitution establishes a Pardons Board for each State as well as one for the Federal Territories. The Pardons Board consists of:

1. the Attorney-General of the Federation (or his representative);
2. the Chief Minister of the State/the Federal Territories Minister; and
3. not more than three other members appointed by the Yang di-Pertuan Agong/Ruler/Yang di-Pertua Negeri.

The three members mentioned in sub-paragraph (3) above cannot be members of the Legislative Assembly of the State or the House of Representatives. They are appointed for a term of three years but are eligible to be reappointed.

The Pardons Board is to be presided over by the Yang di-Pertuan Agong/Ruler/Yang di-Pertua Negeri and must meet in his presence. The Pardons Board is also required, under Article 42(9) of the Federal Constitution, to consider any written opinion which may be given by the Attorney-General before tendering its advice to the Yang di-Pertuan Agong/Ruler/Yang di-Pertua Negeri to consider. Slightly different procedures apply where a matter falls within the three qualifications set out in Article 42(12) of the Constitution.

Is the advice binding?

While the Pardons Board is required by the Federal Constitution to tender its advice to the Yang di-Pertuan Agong/Ruler/Yang di-Pertua Negeri, case law suggests that the decision is personal to the Yang di-Pertuan Agong/Ruler/Yang di-Pertua Negeri and therefore the advice of the Pardons Board need not necessarily be heeded.

In the Supreme Court case of Sim Kie Chon v Superintendent of Pudu Prison & Ors [1985] 2 MLJ 385, Sim Kie Chon commenced legal proceedings to challenge the decision of the Pardons Board to reject his petition for clemency on the basis that the Pardons Board had previously commuted the death sentence of Mokhtar Hashim (a former Minister of Youth and Sports) who was convicted of the murder of Datuk Mohamad Taha Talib, a former Negri Sembilan State Assemblyman.

In dismissing this contention, the Supreme Court made it clear that it was not the function of the Pardons Board to commute a death sentence. The role of the Pardons Board was limited to merely tendering advice to the Yang di-Pertuan Agong, but it was His Majesty himself who exercised the executive power, which was one of a high prerogative of mercy.

This principle was applied by the High Court in Karpal Singh v Sultan of Selangor [1988] 1 MLJ 64, where Karpal Singh had sought a declaration that the blanket statement made by the Sultan of Selangor that he would not pardon anyone who had been sentence to death for drug trafficking was in violation of Article 42 of the Federal Constitution. Karpal Singh took the position that the Sultan could only reject a petition of clemency after considering the advice of the Pardons Board and applying his mind to the petition before him. In applying Sim Kie Chon, the High Court held that it was not mandatory for the Sultan to act on the advice of the Pardons Board.

As a side note, it is possible that Mokhtar Hashim may be the only Malaysian to have received a double pardon, first in 1984 when his death sentence was commuted to life imprisonment, and thereafter in 1991 when he was granted a full pardon. Both pardons were granted by the Yang di-Pertuan Agong under the Essential (Security Cases) Regulations 1975 as Mokhtar had been charged and convicted for a security offence.

Justiciability of a decision

A crucial question that springs to mind is whether the decision of the Yang di-Pertuan Agong/ Ruler/Yang di-Pertuan Negeri can be challenged by way of judicial review proceedings in a manner similar to challenges mounted against the decisions of other administrative bodies/tribunals.

This issue came before the Supreme Court in Superintendent of Pudu Prison & Ors v Sim Kie Chon [1986] 1 MLJ 494, the second episode of the Sim Kie Chon saga. The protagonist, Sim Kie Chon, had been convicted on a charge under the now-repealed Internal Security Act 1960 and sentenced to death by the Kuala Lumpur High Court (upheld on appeal by the Federal Court). As mentioned above, the Yang di-Pertuan Agong had rejected Sim’s plea for clemency.

Following the disposal of the initial proceedings initiated by him, Sim instituted fresh proceedings for, among others, declarations that the decision of the Pardons Board was void and legally ineffective and that the Pardons Board had acted in breach of natural justice. The Appellants’ application to set aside the proceedings as an abuse of the process of the court was dismissed and resulted in the appeal before the Supreme Court.

In allowing the appeal, the Supreme Court reiterated at the outset the principle in Sim Kie Chon that the role of the Pardons Board is only advisory in nature and that the true decision-maker is the Yang di-Pertuan Agong. The Supreme Court took the view that Sim was attempting to challenge the exercise by the Yang di-Pertuan Agong of his powers of clemency under Article 42 of the Federal Constitution.

However, this was fatal to his case as Article 32(1) of the Federal Constitution provided that the Yang di-Pertuan Agong shall not be liable to any proceedings in any court. It held that the power of the Yang di-Pertuan Agong was an executive act which was by its very nature not an act that is susceptible or amenable to judicial review. This was in accordance with the legal principle enunciated by the apex courts of Australia and England at the time.

This issue came up again before a 5-member bench of the Federal Court in Juraimi bin Husin v Pardons Board, State of Pahang & Ors [2002] 4 MLJ 529. Juraimi, together with the infamous shaman, Mona Fandey, and her husband, had been convicted of the murder of Mazlan Idris, a State Assemblyman in Pahang. Juraimi was sentenced to death by all three tiers of the Superior Courts. His petition to the Sultan of Pahang for clemency was subsequently rejected, at which point he commenced legal proceedings to challenge the constitutionality of the said rejection.

The matter was referred to the Federal Court to determine certain questions of law, the primary one of which was whether the decision-making process of the Sultan of Pahang was justiciable. In this case, the process was challenged on the basis that there had been an inordinate delay of approximately two years between the presentation of the clemency petition and the rejection of the same.

Having examined the authorities before it, the Federal Court decisively held that the prerogative of mercy, which includes the power to grant a royal pardon, was not susceptible to judicial review because its nature and subject matter was not amenable to the judicial process. This would include challenges made against the decision-making process as the attempt to make the process justiciable would indirectly make the decision itself justiciable.

It is therefore clear that the decision of the Yang di-Pertuan Agong/Ruler/Yang di-Pertua Negeri on a petition for a royal pardon cannot be reviewed and examined by the Court. The granting of a royal pardon is solely at the discretion of the Yang di-Pertuan Agong/Ruler/Yang di-Pertua Negeri.

The position in Malaysia differs from the current position in the United Kingdom where it has been held in Regina v Secretary of State for The Home Department, Ex-parte Bentley [1994] QB 349 that decisions on a petition for clemency are susceptible to judicial review if their nature and subject matter were amenable to the judicial process and insofar as the challenge did not require the court to review questions of policy.

Is admission of guilt required?

It is commonly assumed that an application for a royal pardon means that the person convicted of the crime is making an admission of guilt. However, there is nothing in law that says that a petition for clemency can only be made on this basis. The Yang di-Pertuan Agong/Ruler/Yang di-Pertua Negeri is entitled to take into account protestations of innocence or external factors in reaching a decision to grant a royal pardon as His Majesty is free to act in the overarching interest of justice, public interest and conscience. As held by the Federal Court in Public Prosecutor v Lim Hiang Seoh [1979] 2 MLJ 170:

“When considering whether to confirm, commute, remit or pardon, His Majesty does not sit as a court, is entitled to take into consideration matters which courts bound by the law of evidence cannot take into account, and decides each case on grounds of public policy”.

Effect of a pardon

There appears to be two types of pardons — a “conditional pardon” where the sentence is substituted with a lesser sentence, for example, a death sentence being commuted to life imprisonment, or a “free pardon”, which according to Baron Pollock in Hay v Tower Justices 24 QBD 561 extends beyond merely acquitting of punishment and operates to purge the offence so as to clear the party from the infamy and all other consequences of his crime.

The effect of the pardon granted to Anwar Ibrahim was called into question during the Port Dickson by-election. Anwar’s eligibility to contest in the by-election was challenged by Noraziah Mohd Shariff, a voter in the Port Dickson Parliamentary Constituency, on the ground that Anwar had only received a “full pardon” whereas Article 48(1)(e) of the Federal Constitution requires a person to receive a “free pardon” to avoid being disqualified under that provision by reason that the person had been convicted of an offence and sentenced to a term of imprisonment of one year or a fine of RM2,000.00.

While the Federal Constitution refers to a “free pardon” in several provisions, it does not use the term “full pardon” at all. It would appear that the question as to whether the royal pardon bestowed upon Anwar tantamount to a “free pardon” would depend on the terms of the pardon granted by the Yang di-Pertuan Agong. Unfortunately, this issue remains a moot point for now as the case was struck out by the High Court due to Noraziah’s failure to attend Court on the date fixed for case management of her case.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.