In appropriate circumstances the power of pardon can ease national tensions, heal political wounds and right historic wrongs.
THE submission by Datuk Seri Anwar Ibrahim’s family of a petition for pardon to the Yang di-Pertuan Agong draws our attention to this controversial power of clemency which the executive wields in almost every legal system.
The “prerogative of mercy” is often criticised because it circumvents the justice system and overrides judicial powers.
However, those supporting it argue that in appropriate circumstances the power of pardon can ease national tensions, heal political wounds and right historic wrongs.
Spectacular examples of clemency in the United States are President Gerald Ford’s pardoning of former President Richard Nixon for Watergate-related crimes; President Jimmy Carter’s pardoning of Vietnam War draft dodgers; and President George H. W. Bush’s pardoning of six Reagan administration officials for the sale of arms to the Contras.
In Malaysia, after the 1969 general election, a remarkable exercise of clemency was exhibited to remove opposition Member of Parliament Lim Kit Siang’s disqualification from Parliament for an election offence.
In the 1970s, Datuk Seri Harun Idris, Selangor’s powerful former mentri besar, was pardoned after serving a few years in jail for commercial crimes.
Datuk Mokhtar Hashim, former youth and culture minister, convicted for murdering a political rival, had his death sentence commuted before receiving a full pardon.
Status as MP: Under Article 48(1)(e), an MP is disqualified from being a Member of Parliament if he is sentenced to imprisonment of not less than one year or a fine of not less than RM2,000. However, if he applies for a royal pardon the disqualification is stayed till the petition is disposed of. There is no time frame within which the King must deal with the petition. This means that Anwar remains an MP till his petition receives a response.
It is, however, a separate issue, whether he is entitled to attend Parliament given his conviction without disqualification.
The Constitution is silent and related laws point in different directions. In the case of Yazid Sufaat (2006), an Internal Security Act detainee demanded a right to cast his electoral vote. The Election Commission and the court implied that had he registered as a postal voter, he could have exercised the franchise.
In contrast, those convicted of crimes are disqualified from voting due to Article 119(3).
Perhaps parliamentary traditions, prison rules and largesse by the ruling party will determine Anwar’s quest to attend Parliament.
Scope of discretion: In relation to pardon, does the Yang di-Pertuan Agong have personal discretion or must he act in accordance with advice? If it is the latter, who advises him – the Pardons Board under Article 42 or the Prime Minister under Article 40(1)?
Some judges suggest that the “prerogative of mercy” is personal to the Monarch.
In Sim Kie Chon (1986) the Supreme Court stated that the Pardons Board is only an advisory body and makes no decision whatsoever, but only tenders advice to the King. There can be no judicial review of the decision of the King under Article 42: Juraimi Husin (2002).
With all due respect, this imitates old British attitudes that mercy is a prerogative (i.e. an inherent, non-reviewable discretion).
The current United Kingdom position in ex parte Bentley is that in some circumstances there can be judicial review.
In India, in the landmark cases of Maru Ram and Kehar Singh, and in the US, in Hoffa v Saxbe and Burdick v United States, the power of pardon has become subject to judicial scrutiny.
In Malaysia, with a supreme Constitution and a very elaborate Article 42 on pardon (covering 976 words), any talk of a “prerogative” is an error of jurisprudence. The King’s power of pardon is a constitutional, not a prerogative, power which is hedged in by substantive and procedural limitations.
Article 42 provides for several Pardon Boards with prescribed composition which must include the Attorney-General.
Procedures are outlined. Conflict of interest is forbidden by disqualifying the Yang di-Pertuan Agong, the Rulers and the Governors from exercising the power of pardon in favour of themselves, their consort, son or daughter.
It is submitted that save for one exception, the power of pardon must be exercised on the advice of a Pardons Board.
The exception is when the petitioner is the King or Sultan or his consort. In such situation, there is no provision for a Pardon Board and the Conference of Rulers decides on its own.
Range of actions: Under Article 42 the King, in exercising mercy, has several choices. He can bestow a full pardon that removes both punishment and guilt and wipes the slate clean and blots the sin.
Alternatively, His Majesty can grant a reprieve that reduces the severity of a punishment. A third possibility is a respite that delays the execution of the penalty.
It is not certain whether in granting mercy the King can impose pre-conditions.
What is known is that a pardon can occur even before a conviction, as in the US for Richard Nixon by President Ford.
Grounds for mercy: Will the submission by Anwar’s family to the King, that the Federal Court committed grave errors of law, carry any weight with His Majesty? No one knows. Even if it does, will the Yang di-Pertuan Agong wait for one or two years (as in the case of Datuk Mokhtar Hashim) before determining the mercy petition?
In the meantime, scholars will continue to argue whether the power to grant a royal pardon is part of Article 40(2)’s treasury of discretionary functions (in the exercise of which the King is not bound by ministerial advice) or whether it is part of the monarch’s non-discretionary function (in respect of which His Majesty is bound by Article 40(1), 40(1A) and 40(3) to act “after consultation with or on the recommendation of any person or body of persons”).
Whatever one’s view may be, the old dictum cannot be forgotten that constitutional law is linked with politics on one side and philosophy on the other.
> Shad Faruqi, Emeritus Professor of Law at UiTM, is a passionate student and teacher of the law who aspires to make difficult things look simple and simple things look rich. Through this column, he seeks to inspire change for the better as every political, social and economic issue ultimately has constitutional law implications. He can be reached at firstname.lastname@example.org. The views expressed here are entirely his own.