"We must develop and maintain the capacity to forgive. He who is devoid of the power to forgive is devoid of the power to love." – Martin Luther King Jr.
Across the globe, there exists the power to pardon regardless of a nation’s religious ideology or political system and this commanding decree has, over the years, had its fair share of debates and controversies.
The conceptualisation of a pardon first flourished in 18th century medieval Europe which granted the monarch the authority of mercy, whilst in America it was first instigated by Alexander Hamilton at the Constitutional Convention in 1787 that subsequently resulted in the president’s power to pardon being incorporated into the United States Constitution.
Interestingly, the motivation and justification for both Europe and the United States to inaugurate the notion of pardon were to fill any aperture in the legal process and in some instances to remedy a wrong where justice was not dispensed in accordance with the law. The raison d'etre for this could be that laws are not formulated based on the concept that there ought to be compassion for guilt and therefore it is only when the law pauses, mercy sets in motion to bestow upon on an outlaw the blessing of forgiveness.
Justice Robert Sharpe, Judge of the Ontario Court of Appeal once said: ‘the traditional view was that pardons were a safety valve that allowed for consideration of mercy and compassion in cases where the law failed to reflect understandable human frailties and where it would be dangerous or inappropriate for the law to do so formally.”
In the United States, the president’s power to pardon is provided for under Article II, Section 2, Clause 1 of the US Constitution, whilst in Singapore the president’s power is vested under Article 22P of the Singapore Constitution. In Malaysia, the power to pardon is governed by Article 42 of the Federal Constitution which provides:
“The Yang di-Pertuan Agong has the power to grant pardons, reprieves and respites in respect of all offences which have been tried by court-martial and all offences committed in the Federal Territories of Kuala Lumpur, Labuan and Putrajaya; and the Ruler or Yang di-pertua Negeri of a State has power to grant pardons, reprieves and respites in respect of all other offences committed in his State”.
Pardon process
By virtue of regulation 11 of the Prisons Regulations 2000, any convicted person is vested with the right to petition for a pardon or alternatively, the application for a royal pardon could be done on the convicted person’s behalf by his or her family or any other person duly authorised by the prisoner concerned such as lawyers.
In respect of offences committed in the Federal Territories, any petition filed shall be considered by the Pardons Board which is presided by the Yang di-Pertuan Agong and the board shall comprise the attorney-general or his representative, the Federal Territories minister and not more than three other members appointed by the Yang di-Pertuan Agong who shall serve for a period of three years albeit their appointments can be extended after the expiration of the three years.
The Pardons Board shall review each application filed together with any supporting documents and the board, before tendering their advice to the Yang di-Pertuan Agong, shall consider any written opinion by the attorney-general in accordance with Article 42(9) of the Federal Constitution.
However, it is imperative to note that Article 49(2) of the constitution does not make it mandatory for the attorney-general to render a written opinion or alternatively if so rendered, it need not necessarily be considered by the Pardons Board as was held in the Court of Appeal’s case of Datuk Seri Anwar bin Ibrahim v Mohd Khairul Azam bin Abdul Aziz and another appeal [2023] and in the case of Karpal Singh v Sultan Selangor [1988].
Even though the Federal Constitution requires the Pardons Board to render its advice to the Yang di-Pertuan Agong, nevertheless His Majesty is not bound to act on the advice rendered and instead has the absolute discretion whether to grant pardons, reprieves and respites in respect of all or any offences as the royal prerogative of mercy is personal and exclusive to the Yang di-Pertuan Agong, which is similar to a presidential pardon in the United States.
Additionally, Article 42 of the constitution does not in any way curtail the powers of the Yang di-Pertuan Agong as the power to grant a pardon are boundless, extensive and at the absolute discretion of His Majesty. In this respect a pardon granted is not exhaustive and cannot be curtailed by law.
Nature of pardon
The pardon granted could be to declare the innocence of a person or it could be granted for any other reasons, but it bears no difference as a pardon effectively relieves the person from all legal repercussions borne out of the conviction and this by implication not only relates to freedom from imprisonment but also restoration of all civil rights including the right to hold office.
A pardon once granted extends to both the finding of guilt and the punishment handed down by the courts. In this context, a pardon liberates the offender unconditionally. This legal postulation is the same as was held by the courts in other jurisdictions such as in the American cases of Exparte Garland [1886] and United States v Klein [1871] where the courts had held that the president’s power to pardon cannot be restricted by the legislature.
It is also pertinent to note that the advice rendered by the Pardons Board or any decision made by the Yang di-Pertuan Agong in respect of pardons cannot be challenged in any court of law as the courts in Malaysia have consistently held that matters pertaining to pardons and clemency are non-justiciable. For instance, in the case of Public Prosecutor v Soon Seng Sia Heng [1979] the Federal Court held:
“When considering whether to confirm, commute, remit or pardon, His Majesty does not sit as a court, is entitled to take into consideration matters which the courts bound by law of evidence cannot take into account…”
Further, the highest court had also on occasion in the case of Dato’ Dr Zambry bin Abd Kadir v Dato’ Seri Ir Hj Mohammad Nizar bin Jamaluddin (Attorney General of Malaysia, intervener [2009] said that the king has absolute prerogative powers when exercising the discretion on whether to grant pardons.
In other countries
Across the causeway, the same view was held by the Singapore Court of Appeal in the case of Yong Vui Kong v Attorney General [2011] that not only the power but the process of clemency cannot be reviewed by the courts. Nevertheless, whether a pardon ought to be justiciable seems to differ with other jurisdictions such as in the United Kingdom, where the courts are vested with the power to review the exercise of pardon and in India, the Supreme Court in the case of Epuru Sudhakar & Anor v Government of Andhra Pradesh & Ors [2006] held that the power to pardon can be subjected to judicial review and that the act of clemency is neither a privilege nor an act of grace.
However, it must be borne in mind that in these countries the power to pardon is an executive prerogative and not a royal prerogative. For instance, in the United Kingdom even though it is the monarch that grants pardons, the monarch can only exercise its power to pardon on the advice of the home secretary.
Even in Sri Lanka, the highest court had on January 17, 2023 revoked a presidential pardon, but it must be understood that firstly it was not a royal pardon and secondly that this was only possible due an amendment that was made to Article 35(1) of the Sri Lankan Constitution in 2015 which allowed for official decisions made by the president to be challenged in the Supreme Court. Such an express provision does not exist in Malaysia’s Federal Constitution.
When clemency begins
In this sense and in reviewing the legal authorities and the reasoning of the judgments in Malaysia and other jurisdictions, the royal prerogative to grant mercy or decision-making process in Malaysia cannot be challenged under any circumstances by way of a judicial process. I am of the view that this position appears to be veracious as by separating the judiciary from the power to pardon obviates the concern that the power to judge and the power to pardon should not be vested in the hands of the same branch of government or individual.
Furthermore, it is not the law that pardons but instead the law grants the right of pardon. In this context, I find it somewhat unsuitable to declare that the law pardons as that would be odd and at variance for the very purpose that laws were enacted in the first place. Instead, the law provides for the right to pardon as the law does not forgive for what has been broken, but instead declares that a wrong that has been committed and metes out the consequences arising from that wrong.
It would be more justifiable to say that the law can grant the power of pardon to a person as it is the law, to begin with, that had the power to punish. Elementally, clemency only begins when the law ends. In this regard the process to seek a pardon only begins when a person has exhausted all his legal remedies with a court of law. – The Vibes, January 18, 2024
Datuk Seri Rajan Navaratnam is a senior advocate and writes about the law
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