Searching questions about royal pardon

Mercy is not the subject of legal rights. It begins where legal rights end

AT the recently concluded Umno general assembly, overwhelming support was expressed for seeking a royal pardon for former prime minister and ex-Umno president Datuk Seri Najib Razak.

On the sidelines of the assembly, a number of other searching questions was raised about the law and practice of royal pardon.

1. Is the PM bound by a coalition partner’s request to apply for pardon?

2. If there is a Cabinet decision, is the PM bound by it?

3. Does the PM have a role on the Pardons Board?

4. In the exercise of the royal power of pardon, does the Yang di-Pertuan Agong act at his discretion or on advice?

5. Who has the right to advise the King on the issue of pardon?

6. Can the King’s decision be subject to judicial review?

7. What is the legal effect of a pardon or an exercise of clemency?8. Can a pardon be granted in advance of a conviction?

Is the PM bound by a coalition partner’s request?

Some have argued that as Umno is part of the unity government, its decision to seek a pardon or reprieve for its former leader is tantamount to the unity government’s stand. It is submitted that there is no legal basis for this view that in a coalition government, the view of one partner is binding on all others. The matter is one of coalition politics rather than of law.

If there is a Cabinet decision, is the PM bound by it?

Nobody with knowledge of the working of Cabinet government in parliamentary democracies will submit that the PM is always bound by the Cabinet’s advice. In almost all parliamentary democracies, Cabinet government has transformed into prime ministerial government. The PM is the leader of the Cabinet and not its mere echo. He can reject its advice. His non-compliance with a Cabinet decision may affect the stability of his coalition government, but there is virtually no possibility of judicial review.

Does the PM have a role on the Pardons Board?

The composition of the Pardons Board for Wilayah Persekutuan is regulated by the Federal Constitution’s Article 42(11). The Board consists of the King as chairman, the Attorney-General or representative, the Federal Territories Minister and not more than three lay members appointed by the monarch.

The PM has no role on the Board, but if he is also holding the post of Federal Territories Minister, then he sits on the Board in that limited capacity.

In the exercise of the power of pardon, does the King act at his discretion or on advice?

The courts are unanimous that in the exercise of the power of pardon, the Yang di-Pertuan Agong is not bound by the Board’s advice and acts at his own discretion: In Sim Kie Chon (1986), the Supreme Court ruled that the Pardons Board is only an advisory body and makes no decision whatsoever, but only tenders advice to the King.

Who has the right to advise the King on the issue of pardon?

The general rule in Article 40(1) that the King acts on the advice of the Cabinet or any Minister authorised by the Cabinet is subject to the exception in Article 40(3) that the Yang di-Pertuan Agong may act after consultation with any person or body of persons other than the Cabinet where such provision is made in any other Article. It is submitted that in the matter of pardon, it is the Pardons Board under Article 42 and not the PM or the Cabinet under Article 40(1) that advises the King.

Judicial review: The exercise of the power of pardon in Malaysia is not subject to judicial review. The courts do not wish to enter this legal thicket. It is generally agreed that once a decision is made to grant or refuse a pardon, the courts cannot interfere. A wealth of case law exists on this point: Chow Thiam Guan (1983), Sim Kie Chon (1986), Karpal Singh v Sultan of Selangor (1988) and Juraimi Husin v Pardons Board (2001). In Sim Kie Chon, our Court quoted the colourful language of Lord Diplock in a British case that “Mercy is not the subject of legal rights. It begins where legal rights end.”

However, it must be noted that while the exercise of the power of pardon is unchallengeable in a court of law, in the post-1993 situation, there may be triable issues about the procedural requirements of Article 42 – the convening of the Board and the role of the AG.

Also, the law on the composition of the Pardons Board was significantly altered in 1993. Under Articles 42(12) and 42(13), the Board’s chairmanship may vary depending on who is seeking the pardon. In some circumstances, the King or Sultan or Governor is forbidden from presiding over the Board to avoid a conflict of interest.

What is the legal effect of an exercise of clemency?

Much depends on the type of pardon granted and whether it was about the conviction or the sentence. There are many ways of exercising clemency. Articles 42(1), 42(2) and 48(1)(e) variously mention free (or full) pardon, reprieve, respite, remission, suspension or commutation.

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. The convict is also released from all the legal disabilities and disqualifications, as in the case of Datuk Seri Anwar Ibrahim (2018) who, after his pardon, contested and won the Port Dickson by-election. The disqualification of Article 48(5) is not applicable to him.

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 Harun Idris’s case in the 70s). The fine can be lowered. Alternatively, the prison sentence can be lifted but the fine retained.

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

It is up to the Board in each case to choose between a full pardon or remission for its advice to the Yang di-Pertuan Agong.

Can the King pardon in respect of offences not yet tried?

Take the Najib case as an example. Besides the conviction in one case, Najib is facing several other criminal cases.

Can the King pardon him in advance for all these criminal charges even before the conviction is arrived at?

In the United States of America, it is well known that the president has the power to show clemency towards those not yet charged and not yet convicted! President Ford pardoned Richard Nixon in advance of any charge.

In Malaysia, this has never been done. It is possibly unconstitutional under Article 42(1), which envisages the Board’s deliberations on offences and tendering of advice to the King. Furthermore, the power to institute or discontinue any proceeding for an offence belongs to the AG under Article 145(3) and not to His Majesty.

The author is the Holder of the Tunku Abdul Rahman Chair at the Faculty of Law, Universiti Malaya. The views expressed here are his own.