Law Speak - The royal pardon

The Sun Daily
by Gurdial Singh Nijar

RECENT events have propelled into the public domain the topic of the pardon for a criminal conviction. Several questions have emerged: Who exercises this power? How is it exercised? Who can ask for a pardon? When can it be sought? Does an application imply guilt? Can the decision to grant or reject be challenged? What is the effect of a pardon?

This article seeks to look at the applicable law and, where known, the practice in relation to pardons.

Who is given the power?

The power to grant a pardon is given explicitly by the Federal Constitution to the King – for offences committed in the Federal Territory; and to the ruler or governor of a state if the offence is committed in a state.

It is an exercise of executive power – as contrasted with the judicial functions of the courts or legislative functions of Parliament. Although executive power is vested under our constitution in the King, he is required to act on advice – either of the Cabinet or any other designated body.

The constitution has also established a Pardons Board for each of the states as well as one for all the Federal Territories. It comprises the attorney-general (or his representative), the Federal Territories minister and three other members to be appointed by the King. The King presides over the board. The board must consider the written opinion of the attorney-general before giving its decision.

The appointment of a cabinet minister seems to be at odds with the spirit of a constitutional provision which states that Parliament may make a law requiring the King to act after consultation with, or on the recommendation of, any person or body of persons other than the Cabinet – although no law has been enacted. The spirit of this provision implies that the Cabinet (which must necessarily include any cabinet member) must not be in any advisory body.

Courts often look not only at the letter of the law but, as well, its spirit to determine its reach.

In summary, the King decides whether or not to grant a pardon. He must seek the advice of the Pardons Board. Further, it is questionable whether a cabinet minister should be in the board.

Must the King act in accordance with the advice?

Does the King act in his own discretion; or must he follow the advice given by the Pardons Board?

Pre-1994 court decisions declared that it was the King's personal discretion to decide on the grant or refusal of a pardon. A 1974 Supreme Court decision declared: "Clearly the Yang di-Pertuan Agong himself exercised the power."

However, in 1994, the constitution was amended, following upon an intense contest between the rulers and the executive under Prime Minister Tun Dr Mahathir Mohamad. The power of the King to act on his own was dramatically curtailed – except in a very limited number of prescribed situations.

A new provision was added: whenever the King exercises his functions under the constitution or any federal law where he is required to act "in accordance with advice, on advice, or after considering advice", then he must accept and act in accordance with such advice: Article 40(1A).

This implies that after the amendment, the advice of the Pardons Board must be accepted and acted upon. However the relevant Article 42 – which deals with pardons – was not amended to reflect this change. And court decisions since the amendment seem to reflect the same position as before the amendment. As late as 2002, a full five-judge panel of the Federal Court approved the pre-amendment principle (cited above); as did a recent 2011 High Court case.

So although the legal position – on a straight reading of the constitutional provisions – is that the King does not act in his personal discretion, case law supports the proposition that the King has the personal discretion to decide whether or not to grant the pardon. Further, he is not bound to act on the "advice" given by the Pardons Board.

The process

There are no rules governing the process. It is not stated who should be the applicant. Nor is the form of the petition prescribed. Also, there is neither a time limit for submitting the petition; nor for the King to decide. The considerations that the King must take into account are also not stated.

This is left to be inferred from matters relevant to the grant of "mercy". The Supreme Court merely states that each case is to be decided on its own merits. The King can take into consideration matters which courts, bound by the law of evidence, cannot take into account; and he can consider public policy.

Admission of guilt?

The person convicted of a crime is appealing to the King to grant him a reprieve from the sentence. Generally and quite logically this would connote an admission of guilt.

Most cases where a pardon is sought fall in this category. Mokhtar Hashim's death sentence was commuted. A 14-year-old boy sentenced to death was instead sent to a school for delinquent juveniles. The jail sentence of Harun Idris, one-time mentri besar of Selangor, was reduced.

What if the petition for pardon is made on the basis that there has been a miscarriage of justice and that the convict is innocent? Can a pardon be given where guilt is not admitted?

There is nothing in law to say that a pardon cannot be made on this basis; or that a pardon cannot be given taking this "innocence" into account. Of course, it may be a lot harder to get a pardon on this basis. But there is no legal constraint.

The King must act "with the greatest conscience and care and without fear of influence from any quarter" – as the higher courts have repeatedly affirmed. So he can decide on the basis of the grounds of innocence set out in a petition. The King is not obliged to give any reasons for his decision; nor are reasons normally provided when the pardon is granted.

This suggests that there is no limit to the situations when a pardon can be granted on the basis of mercy.

Further, as the courts have repeatedly declared, the King does not sit as a court. He is entitled to take into consideration matters which courts cannot take into account. He can decide on his view of public policy.

So legally speaking, it is open for the petition to be considered on the grounds it refers to, including assertions of innocence and miscarriage of justice.

In these circumstances a particular petition presented on these grounds does not necessarily imply an admission of guilt.

Can it be challenged?

Whatever decision the King makes cannot be challenged in a court of law. The courts have consistently ruled that the discretion exercised is not justiciable. Nor can anything indirectly related to it be challenged – such as a delay in coming to a decision.

What is the effect?

A Harvard Law Review article, after a review of copious case law, concludes that the pardon removes all legal punishment for the offence; and if the conviction involves certain disqualifications the pardon removes such disqualifications. These accord with the provisions of our Federal Constitution which state that a member of parliament who has received a free pardon is not disqualified from being such a member. Additionally, the King is also authorised to remove the disqualification of a convicted member of parliament.

Gurdial is Professor at the Law Faculty, University of Malaya. Comments: letters@thesundaily.com