Written by: Averroes
(1.0) Introduction
Soon on the 22nd March 2022, the Federal Court will hear as to whether the Pardons Board's decision to determine if Anwar Ibrahim's 2018 criminal conviction could be questioned in a court of law.
Anwar stated during a press conference that on 16th May 2018, the Yang di-Pertuan Agong (YDPA) pardoned him on his three convictions, which are one for abuse of power and another two for sodomy, because they were tainted by miscarriage of justice.
He added that the criminal charges were under the plot of conspiracy to condemn him and assassinate his political character.
However, Anwar's lawyer is defending and to refuse to have leave of appeal to the court. Previously, the Court of Appeal rejected the applicant's challenge of the pardon as it was 'obviously unsustainable' as it did not have a proper cause of action.
Moreover, Has Zanah one the bench in the Court of Appeal found that the pardons board's power was not only limited to his sentence, but also his conviction. This would mean that Anwar didn't have men to men intercourse, despite conviction from the courts.
On the issue of pardoning on conviction, it is quite unclear under the law, but if there are legal authorities to suggest that pardon also means to show there was not any conviction, then it is up to debate.
Usually, pardon is for sentences only, such as death penalty to life imprisonment, reduce the amount of prison time or release prisoners altogether. Has Zanah also added that the power of pardon was non-justiciable which cannot be questioned in court. There was no legal basis to file the action.
(1.1) The legal challenge
The applicant filed seven legal questions to be discussed at the apex court as to hear their merits. Among them would be;
Firstly, the pardon given to Port Dickson MP and also at the same time, opposition leader was not according to the law, since the Federal Territories Pardons Board was not constituted at the time in May 2018.
The Attorney-General, Apandi Ali was on garden leave and the Federal Territories Minister had not been appointed yet. Also, Apandi Ali did not appoint a solicitor-general to represent him at the meeting.
This was the requirement under article 42(5) of the Federal Constitution, that the Federal Territories Pardons Board's membership should consist of the Attorney-General, the Minister and at least three others to advise the king.
(2.0) Legal Discussion
We can still be member of Dewan Rakyat unless YDPA rejects our pardon petition
Before May 2018 which witnessed the fall of the ruling 60 year coalition of Barisan Nasional or BN, Anwar Ibrahim was already seeking to get himself acquitted by appealing to the Federal Court and getting a pardon as the last avenue in 2015. He had been appealing since 2008.
In Datuk Seri Anwar Ibrahim v Menteri Hal-Ehwal Dalam Negeri [2015] MLJU 478, Anwar served his 5 years sentence after he was found guilty for sodomy under section 377B of the Penal Code while he was also the Member of Parliament.
While in prison, his wife and daughter applied for a free pardon on his behalf from the YDPA and the petition was brought to the Palace or Istana Negara. He also applied to the Commissioner General of Prisons to attend Dewan Rakyat sessions, but was rejected.
Anwar wanted to challenge that, as under article 48(4)(c) of the Federal Constitution, one is still a member of the Dewan Rakyat until the YDPA disposes his application for a free pardon. Until and unless the YDPA dismisses his pardon, he could still attend the Dewan Rakyat. Anwar also based his arguments on Order 53 of the Dewan Rakyat Standing Orders.
However, the court found that the Istana Negara and the Pardons Board considered his petition and that on the 16th March 2015, his Majesty the YDPA rejected his petition and ordered the punishment of the Federal Court to continue. There was no other evidence to rebut this.
The evidence was given by the YDPA through the Secretariat of the Pardons Board. The evidence or letter was then given to the Prison Director and later informed the Commissioner General of Prisons that Anwar's petition for pardon was rejected. Hence, Anwar is disqualified to become a Member of Dewan Rakyat and could not attend.
While disqualified, his wife contested in the by-elections in Permatang Pauh and replaced him while he was in prison.
How does Pardon work?
In Superintentent of Pudu Prisons & Ors v Sim Kie Chon [1986] 1 MLJ 494, we can observe several traits and legal components of clemency or pardon.
Power to pardon or clemency is an executive power as under article 42 of the Federal Constitution and recognised as under Chapter 3, Part IV of the Constitution. It is the nation's highest executive power, which the courts could not intervene through judicial review, as similarly stated by Has Zanah contemporaneously.
During that time, the Pardons Board constituted under the Essential (Security Cases) Regulations 1975, was the proper body to advise the YDPA under article 42 of the Federal Constitution, read with regulation 29 of the said Regulations.
Furthermore in, Sim Kie Chon v Superintendent of Pudu Prisons & Ors [1985] 2 MLJ 385, court found that clemency is a personal prerogative of the YDPA, even if the Pardons Board advised him. It is based on his conscience, public policy and public interests.
Courts do not have jurisdiction to intervene, since it is of royal nature and that they can stay execution of their sentence until and unless the YDPA or Ruler of the State commutes their death sentence.
In Chiow Thiam Guan v Superintendent of Pudu Prison and the Government of Malaysia [1983] 2 MLJ 116, to apply for stay of execution pending appeal, since courts could not challenge pardons, it is a royal prerogative, not a legal remedy which can be exhausted. Stay of execution is only exercisable under article 42 of the Federal Constitution by the YDPA's discretion.
However, it is slightly questionable to say that pardon is the Rulers prerogative, as constitutional monarchs are actually bound by the advice of the Cabinet Ministers and other members of the government, including the Pardons Board.
Hence, the Rulers pardon is actually from the Pardons Board and he presides over the meetings only as a symbolic presence. The Pardon Board is also politically motivated in a way and their satisfaction is based on who is currently the ruling party.
(3.0) Conclusion
In conclusion, pardon is actually the power of the YDPA and that the Pardons Board is the only body that advises him, but it is not binding. An MP is still eligible to attend the Dewan Rakyat, unless the the YDPA says otherwise if his Majesty rejects the pardon petition.
Also, convicted criminals may apply for petition and stay of execution to get pardoned for any of his criminal offences. That is why, there are prisoners who get pardoned on the Sultan's birthday and that it takes years to get themselves hanged, since their petition is still being vetted and processed by the Rulers or YDPA.
For instances, two drug convicts, instead of the death penalty, got life imprisonment on Sultan Nazrin's birthday. They have been in prison for more than 16 years since 2001. Sultan Ibrahim of Johore also granted reprieve to murderers and drug-offenders whom had been in prison for many years and have not been hanged.
The Sultan changed their sentence from the gallows to life imprisonment in 2015, on condition that they have an audience with him and express their repentance, remorseful, good behaviour and promised to contribute back to society.
We cannot challenge pardons, since it is non-justiciable, however, the Supreme Court in Sim Kie Chon did mention that, if it was an incorrect body or improperly instituted, then they do not have the power to advise the YDPA or Ruler to dismiss or determine the outcome of the pardon petition.
(4.0) References;
FMT Reporters. (March, 2022) Federal Court to decide if Anwar's pardon can be questioned. Retrieved from, https://www.freemalaysiatoday.com/category/nation/2022/03/07/federal-court-to-decide-if-anwars-pardon-can-be-questioned/
MalayMail. (November, 2017) Perak Sultan pardons two drug offenders on death row. Retrieved from, https://www.malaymail.com/news/malaysia/2017/11/01/perak-sultan-pardons-two-drug-offenders-on-death-row/1500079
Bernama. (March, 2015) Johor Sultan grants full pardon to one prisoner, commutes death sentence to life imprisonment for 10 others. Retrieved from, https://www.astroawani.com/berita-malaysia/johor-sultan-grants-full-pardon-one-prisoner-commutes-death-sentence-life-imprisonment-10-others-56190
Pascoe. D. (n.d) What The Rejection of Anwar Ibrahim's Petition for Pardon Tells us About Malaysia's Royal Pardon System. Retrieved from, http://blog.hawaii.edu/aplpj/files/2017/01/2016-1231-APLPJ-Volume-18.1-4-Pascoe.pdf
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