IN the recent case of Mohd Khairul Azam Abdul Aziz v Lembaga Pengampunan Wilayah Persekutuan & Anor (2021) 1 CLJ 94, which was decided in October last year, the plaintiff initiated an action against the first defendant (Lembaga Pengampunan Wilayah Persekutuan) and the second defendant (Anwar Ibrahim) who was given a full pardon by the Yang di-Pertuan Agong (YDPA).The pardon resulted in the commutation of sentence as well as the setting aside of the second defendant’s conviction for an offence under section 377B of the penal code. The second defendant was convicted by the Court of Appeal of the charge and sentenced to an imprisonment term and both the conviction and sentence were upheld by the Federal Court. The second defendant was serving the jail term when he was pardoned by the YDPA. Following the pardon, he was immediately released from jail.The plaintiff initiated the action as a lawyer and a citizen of Malaysia who was aggrieved by the full pardon granted by the YDPA. The main basis of the plaintiff’s grievance was that the first defendant, apart from being wrongly constituted, had wrongly advised the YDPA. The plaintiff sought a declaration from court to invalidate the full pardon and in the alternative, to limit the pardon to the commutation of sentence but not the revocation of the conviction.Both the defendants applied to strike out the plaintiff’s claim under Order 18 Rule 19 of the Rules of Court 2012 on grounds that the claim was frivolous, vexatious and an abuse of the process of the court.There were several issues that arose before the High Court. One of which was whether the power of the YDPA in granting pardon was justiciable, that is, it may be challenged in a court of law. In holding that the YDPA power of pardon is justiciable, Justice Akhtar Tahir held that in matters of granting pardon, the Federal Constitution makes it clear that the YDPA must act not only on the advice of the Pardons Board but must also accept the written opinion of the attorney-general.Having carefully read Articles 39, 40 and 42 of the federal constitution, the High Court judge held that, in granting pardon, the YDPA was acting in his executive capacity. According to the learned judge, the granting of pardon is not at the personal discretion of the YDPA as he must first consult and be advised by the Pardons Board and also consider the written opinion of the attorney-general. The granting of pardon in Malaysia is therefore not a royal prerogative but an exercise of executive power by the YDPA on advice.In his judgment, the learned High Court judge said: “This court rules the granting of pardon by the YDPA is definitely justiciable.”The learned judge reasoned that the granting of pardon in Malaysia could not be regarded as a royal pardon unlike in countries like England where the pardon by the monarch is not subject to restrictions and is given as a royal prerogative. The granting of pardon could not be ruled as not justiciable just because it was exercised by the august and high office of the YDPA. The learned judge ruled that it would be a dereliction of duty on the part of the court and a breach of the federal constitution to rule that the power of pardon is not justiciable.Importantly and significantly, the learned judge also ruled that there were issues that needed to be fully ventilated at the trial of the action, that is, the validity and correctness of the advice given by the first defendant resulting in the granting of the pardon for the second defendant.According to the learned judge again, the court “is empowered to determine whether the advice given justified the pardon.”In short, the executive advice to the YDPA can be challenged in the court of law. – January 26, 2021.* Hafiz Hassan reads The Malaysia Insight. * This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight.
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