10-23-2020, 03:27 PM
PETALING JAYA: The High Court has held that the granting of pardon to convicts in Malaysia is not the exclusive right of the Yang di-Pertuan Agong but an exercise of executive power by the monarch on advice.
Judge Akhtar Tahir said this principle was recognised in the Supreme Court case of Superintendent of Pudu Prison vs Sim Kie Chon (1986).
“However, in the same case, the ruling that the granting of pardon is a ‘royal prerogative of mercy’ is erroneous,” Akhtar said in a written judgment.
Last month, the judge refused an application by the government and Anwar Ibrahim to strike out a lawsuit filed against them by lawyer Mohd Khairul Azam Abdul Aziz over Anwar’s pardon in 2018.
In his 16-page judgment, Akhtar said the King’s exercise of discretion on the appointment of the prime minister might not be justiciable (challenged in the court).
“However, on matters of pardon, where the Yang di-Pertuan Agong acts on advice of the Pardons Board (and) the attorney-general (AG), this power is justiciable,” he said.
Akhtar said the granting of clemency in Malaysia could not be equated to that of England.
“The granting of pardon cannot be ruled as not justiciable just because it is exercised by the august and high office of the Yang di-Pertuan Agong,” he said, adding it would be a dereliction of duty by the court under the Federal Constitution for refusing to hear the matter.
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Judge Akhtar Tahir said this principle was recognised in the Supreme Court case of Superintendent of Pudu Prison vs Sim Kie Chon (1986).
“However, in the same case, the ruling that the granting of pardon is a ‘royal prerogative of mercy’ is erroneous,” Akhtar said in a written judgment.
Last month, the judge refused an application by the government and Anwar Ibrahim to strike out a lawsuit filed against them by lawyer Mohd Khairul Azam Abdul Aziz over Anwar’s pardon in 2018.
In his 16-page judgment, Akhtar said the King’s exercise of discretion on the appointment of the prime minister might not be justiciable (challenged in the court).
“However, on matters of pardon, where the Yang di-Pertuan Agong acts on advice of the Pardons Board (and) the attorney-general (AG), this power is justiciable,” he said.
Akhtar said the granting of clemency in Malaysia could not be equated to that of England.
“The granting of pardon cannot be ruled as not justiciable just because it is exercised by the august and high office of the Yang di-Pertuan Agong,” he said, adding it would be a dereliction of duty by the court under the Federal Constitution for refusing to hear the matter.
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