Engaging issues on power of pardon

Recent high-profile convictions for serious offences have raised many riveting issues of constitutional law that require thoughtful consideration.

IN the last few days, there have been many high-profile convictions for serious offences. These raise many riveting issues of constitutional law that require thoughtful consideration.

1. Is the Yang di-Pertuan Agong bound by the advice of the Pardons Board? Can the courts interfere with a decision by the King to pardon someone?

2. Must a convicted person serve some jail time before a pardon for him is considered?

3. If the petitioner is facing other pending cases, must these be disposed of first before a pardon is considered or can the King grant a pardon in respect of offences not yet tried?

4. What is the effect of a pardon?

Is the Yang di-Pertuan Agong bound by the advice of the Pardons Board? Many court cases have described the King’s power as a “prerogative of mercy”, which is unchallengeable in the courts. In Chow Thiam Guan (1983), Sim Kie Chon (1985), Karpal Singh (1988) and Juraimi Husin (2002), the courts ruled that the Pardons Board is only an advisory body and makes no decision but only tenders advice to the King. The “royal prerogative of mercy” is not amenable to judicial scrutiny.

A critical comment on this view is that it is an error of jurisprudence for our courts to describe the power of clemency as a “prerogative of mercy” – at least at the federal level. In English constitutional law, prerogatives are the non-statutory, inherent and discretionary attributes of the monarchy. Unlike in England, in Malaysia, the power to grant clemency is provided for in a lengthy, 976-word Article in the Constitution.

Article 42(4) allows federal law to enact rules about the exercise of this power. The Criminal Procedure Code and the Prison Rules have therefore been enacted to cover this terrain.

The composition of the Pardons Board is enumerated. In some situations, described in Article 42(12), the King, the Rulers or Governors are disqualified from presiding over the Board. The procedure for the Board’s deliberations is prescribed. A requirement exists that the Board shall consider the written opinion of the Attorney-General. The Board is not merely a consultative body but also renders advice under Articles 42 clauses (9) and (12).

On the bindingness of advice, Article 40(1A) is relevant. It states that “where the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or after considering advice, (he) shall accept and act in accordance with such advice.”

Note must also be taken of Article 40(1), which requires that the Monarch should act on advice except in those areas explicitly permitted by the Constitution in Article 40(2). The King’s power of pardon is not stated as a discretionary power.

Nevertheless, one has to accept the courts’ reluctance to meddle in this partly political area.

It is submitted that in appropriate circumstances, the power of pardon can ease national tensions, heal political wounds and right historic wrongs. For this reason, it is understandable that it is non-reviewable in the courts. But its description by our courts as a “royal prerogative” is an error of constitutional jurisprudence. A better description is that it is a constitutional discretion.

Must a convict serve some jail time before a pardon for him is considered? Can a convict be pardoned right away? Prison Rules 54 and 113 provide some guidance. Under Rule 54, if a prisoner is sentenced to more than seven years, he must serve jail time for at least four years before he is considered for a pardon. In addition, there must be a good behaviour report about the convict from the commissioner general of the Prisons Department.

Under Rule 113, no minimum period needs to be served before a pardon Petition. The prisoner can apply right away. But if the petition is rejected, the next one will be allowed only in three years’ time.

What about pending cases? There is no clear guidance in our law. In the United States, a pardon can occur even before a conviction. That would be difficult to support in Malaysia given the detailed procedural provisions for the convening of a Pardons Board under the Constitution.

What is the effect of a pardon? Much depends on the type of pardon granted. A “free” or “full pardon” wipes the conviction off the slate. It is as if the conviction had never taken place. The convict is released from all the penalties and also all legal disabilities and disqualifications (case of Datuk Seri Anwar Ibrahim 2018 who, after his pardon, contested and won the Port Dickson by-election).

It is to be noted, however, that a pardon does not remove the civil liability for civil wrongs.

Civil wrongs accompanying the crime can still be pursued.

A remission is a reduction or commutation of the sentence. Thus, the death penalty can be reduced to life imprisonment (Datuk Mokhtar Hashim’s case, 1982).

The period of imprisonment can be reduced (Datuk Hj Harun Idris’ case in the 70s). The fine can be lowered as well. Alternatively, the prison sentence can be lifted but the fine retained.

A reprieve or respite is a temporary suspension of the sentence.

In sum, it is up to the Board to choose between full pardon and remission for its advice to the Yang di-Pertuan Agong.

Emeritus Professor Datuk Shad Saleem Faruqi is Holder of the Tunku Abdul Rahman Chair at Universiti Malaya. The views expressed here are the writer’s own.