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Pardon and Clemency in Malaysia

The issue of royal pardon has been a hot topic following the recent news of the Pardons Board granting pardon to Dato’ Sri Najib Tun Razak, the sixth Prime Minister who was convicted in August 2022 under several charges including abuse of power and criminal breach of trust linked to SRC International Sdn Bhd, a former unit of 1 Malaysia Development Bhd (1MDB). This article will discuss in depth the power of pardon through the lens of Malaysian constitutional law.

 

Under Malaysian law, the royal prerogative of mercy or known as ‘pardon’ is contained in Article 42 of the Federal Constitution. Clause (1) of that Article states that:

 

The Yang di-Pertuan Agong has 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.

 

Summary of Article 42(1):

 

1.     Offences committed in Federal Territories: Power to grant pardon by the Yang di-Pertuan Agong.

2.     Offences committed in States with Ruler: Power to grant pardon by the Ruler (Sultan).

3.     Offences committed in States with no Ruler: Power to grant pardon by Yang di-Pertua Negeri.

Although it is called as ‘royal pardon’, the Yang di-Pertuan Agong, the Ruler and Yang di-Pertua Negeri, in granting pardon to the pardon applicants have to consider the advice of a designated and specialized body called Pardons Board.

 

Clause (5) of the Article provides that the Pardons Board for each respective State shall consist of the Attorney General of Malaysia, the Chief Minister (for States) or the Federal Territories Minister (for Federal Territories) and not more than three members appointed by the Ruler (Sultan) or Yang di-Pertua Negeri. However, the Attorney General may in writing delegate his functions as a member of the Pardons Board to any other person, and the Ruler and/or Yang di-Pertua Negeri may appoint any person to exercise temporarily the functions of any member of the Pardons Board appointed by him who is absent or unable to act.

 

Clause (6) provides that the members of a Pardons Board shall be appointed for a term of three (3) years and shall be eligible for reappointment. Clause (8) provides that the Pardons Board shall meet in the presence of the Ruler or Yang di-Pertua Negeri and he shall preside over it.

 

Source of power

 

Clause (4)(b) provides that the power mentioned in Article 42 shall be exercised by the Ruler or Yang di-Pertua Negeri on the advice of a Pardons Board constituted for each respective state in accordance with Clause (5).

 

Clause (9) provides that the Pardons Board shall consider the written opinion prepared by the Attorney General before tendering their advice. However, it only makes obligatory on the part of the Pardons Board as constituted under Clause (5) of Article 42 consisting of specified persons to consider a written opinion which the Attorney General may have delivered thereon before tendering advice, see Karpal Singh v Sultan of Selangor[i].

 

It is interesting to note that the prerogative powers, such as the prerogative of mercy, are not susceptible to judicial review because their nature and subject matter is not amenable to the judicial process. The power of pardon under Article 42 of the Constitution is a prerogative of mercy; its exercise is, therefore, not susceptible or amenable to judicial review. (See dicta of Lord Roskill in Council of Civil Service Unions & Ors v. Minister for the Civil Service [1984] 3 All ER 935 which was followed by the Supreme Court in Sim Kie Chon v. Superintendent of Pudu Prison & Ors[ii]). The process of pardon is clearly not justiciable. Treating the decision making process of the Pardons Board as justiciable would ultimately render the decision itself justiciable. See Ahmad Fairuz CJ (Malaya) in Juraimi bin Husin v Pardon Board, State of Pahang & Ors[iii].

 

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 courts bound by the law of evidence cannot take into account, and decides each case on grounds of public policy; such decisions are a matter solely for the executive. We cannot confirm or vary them; we have no jurisdiction to do so. The royal prerogative of mercy, as is recognised by its inclusion in Chapter 3 of Part IV of the Constitution, is an executive power-as in Jamaica, Hinds v. The Queen. – Abdul Hamid Omar CJ in Sim Kie Chon v Superintendent of Pudu Prison & Ors [1985] 2 MLJ 385.

 

Types of pardon

 

There are two types of pardon which are conditional pardon and free pardon. If a person was granted with conditional pardon, his sentence is substituted with lesser sentence for example death sentence commuted to life imprisonment. This was the case in the recent Pardon Board’s decision of Dato’ Sri Najib where the convicted former Prime Minister’s jail term had been reduced from 12 years to six years and the fine imposed on him has been reduced to RM50 million from RM210 million.

 

Free pardon on the other hand acquits a punishment and operates to purge the offence so as to clear a person from the infamy and all other consequences of his crime. A free pardon is an occasion when someone who has committed a crime is officially forgiven and it wipes out the conviction and one does not need to appeal in respect of overturning the conviction. This is the situation for full pardon granted by Sultan Muhammad V, the then Yang di-Pertuan Agong to Dato’ Sri Anwar Ibrahim in 2018 after Pakatan Harapan coalition winning the 14th General Election.

 

Does the Yang di-Pertuan Agong, Ruler and Yang di-Pertua Negeri bound to follow the advice of the Pardons Board?

 

Despite having the law that requires the Yang di-Pertuan Agong to consider the advices given from the Pardons Board, it is solely up to the discretion of the Yang di-Pertuan Agong whether to grant a pardon. This can be seen in the judgment held by Supreme Court in Sim Kie Chon v Superitendent of Pudu Prison & Ors whereby the function of the Pardons Board under Article 42 of Federal Constitution is not to commute death sentences but is limited to merely tendering advice to the Yang di-Pertuan Agong. The Yang di-Pertuan Agong himself has the executive power either to grant pardon or not. As such, although the Pardons Board had tendered the advice to the Yang di-Pertuan Agong, Yang di-Pertuan Agong himself had exercised his power in accordance with Article 42.

 

Is pardon in Malaysia reviewable?

 

In Malaysia, cases have shown that any decision of the Yang di-Pertuan Agong on granting pardons is not susceptible to judicial review and cannot be challenged such as cases like Superintendent of Pudu Prison & Ors v Sim Kie Chon and the case of Juraimi bin Husin v Pardons Board, State of Pahang & Ors.

 

In Superintendent of Pudu Prison & Ors v Sim Kie Chon case, the power to grant pardon by the Yang di-Pertuan Agong is an executive act which was by its very nature not an act that is susceptible or not amenable to judicial review. Hence, pardon granted by the Yang di-Pertuan Agong, Ruler, and Yang di-Pertua Negeri is not justiciable or in other words, is not capable of being determined by the court of law.

 

Article 42(1) does not make it mandatory for a Ruler or the Yang di-Pertuan Agong to act on the advice of the Pardons Board. It is solely upon the discretion of the Yang di-Pertuan Agong to grant the royal pardon or not therefore the decisions to any applicant cannot be reviewed, appealed, and questioned in courts.

 

In Karpal Singh v Sultan of Selangor, it was held that the Yang di-Pertuan Agong is not bound to act on the advice of the Pardons Board and his decision is not reviewable in the court of law. The Yang di-Pertuan Agong is permitted to exercise their discretion in their prerogative of mercy.

 

Clarity of tests and rules in granting pardons

 

Generally, it could be seen that Malaysia has no clear and definitive rules or procedures in arriving the Yang di-Pertuan Agong, Ruler, and Yang di-Pertua Negeri to a decision whether to grant pardon or not. In practice there are no provisions stating the test, procedure, or even case law in considering a pardon application. This is due to the fact that the decision to grant pardon is solely upon the discretion of the Yang di-Pertuan Agong, Ruler and Yang di-Pertua Negeri and their decisions are not subject to judicial review. Therefore, it could create ambiguity because the process of pardons and clemency does not appear to be transparent.

Furthermore, the process of considering pardon petition in Malaysia can be described as arbitrary due to no clear legal framework as it falls within the ambit of the Executive rather than the Judiciary. The Pardons Board also rarely meets and usually only one meeting will be held in a year depending on the Yang di-Pertuan Agong, Ruler, and Yang di-Pertua Negeri. There is no legal framework in place that outlines the process in detail, nor are there criteria set out as to how pardon decisions should be considered or communicated.

This shows that not only there are no clear legal framework for the Pardons Board in considering a pardon petition, but there are also no tests and rules to guide the members of the Pardons Board in their advisory role which the Yang di-Pertuan Agong, Ruler, and Yang di-Pertua Negeri also have the discretion whether to follow the advice or not.


[i] [1988] 1 MLJ 64

[ii] [1985] 2 CLJ 449

[iii] [2002] 4 MLJ 529


Authored by Hussaini Rozi


Kindly note that this legal article does not, and is not intended to, constitute formal legal advice by the Firm, instead all information, content and materials available on this site are for general informational purposes only. If readers require further clarification or legal advice, please email office@kevinwuassociates.com

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