The Power of Pardon – Does the YDPA Have Unfettered Discretion?

‍INTRODUCTION

It was reported recently that the Pardons Board decided to reduce former Prime Minister Datuk Seri Najib Razak’s sentence as follows:

·       From 12 years imprisonment to 6 years; and

·       RM210 million fine to RM50 million.

The Pardons Board's decision left many Malaysians wondering how it was reached, and many want an explanation to understand the circumstances surrounding the decision.

THE POWER OF PARDON

It is undeniable that the Yang di-Pertuan Agong (YDPA) has the power to grant pardons for all offences which have been tried by court-martial and all offences committed in the Federal Territories. This is enshrined in Article 42(1) of the Federal Constitution, which provides:

 “The Yang di-Pertuan Agong has power to grant pardons, reprieves and respites inrespect 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”.

Under Regulation 113 of the Prison Regulations 2000¹, a prisoner can send a petition on his conviction or sentence once to the YDPA (or the state Ruler or state governor) “as soon as practicable” after his conviction.

Although the power of pardon is conferred on the YDPA, the Federal Constitution at the same time also establishes a Pardons Board. In respect of the Federal Territories, the members of the Pardons Board include the YDPA, the Attorney General, and the Minister responsible for the Federal Territories.²

Thus, an issue arises: is the power of pardon exercisable by the YDPA at his sole or absolute discretion, or must the YDPA act on the advice of the Pardons Board? To resolve this, the relevant provisions of the Federal Constitution must be examined.

 THE FEDERAL CONSTITUTION

 The YDPA as a constitutional monarch

At the outset, it must be understood that the YDPA is a constitutional monarch whose powers and functions are defined and limited by the law. In general, the YDPA must act on the advice of the Cabinet or the Prime Minister, except as otherwise provided by the Federal Constitution.³ Hence, the YDPA may only exercise his functions in accordance with his discretion without the advice of the Cabinet or the Prime Minister if the Federal Constitution provides as such (expressly or impliedly). Some examples of those functions are the appointment of a Prime Minister and the withholding of consent to a request for the dissolution of Parliament.⁴

 Can the YDPA exercise the power of pardon in his discretion?

Within the context of the power of pardon specifically, the question of whether the YDPA can exercise such power in his discretion is more ambiguous because there are arguments on both sides.

On the one hand, there are multiple case laws which support the propositions that the power to pardon is the YDPA’s prerogative and the Pardons Board only acts as an advisory body, and that the exercise of such function by the YDPA is non-justiciable.⁵ A reason for this is that the power of pardon is a royal prerogative and is therefore not subject to the court’s jurisdiction, as it is not the subject of legal rights.

Indeed, there are Supreme Court decisions in the past which support the propositions that the power of pardon is the YDPA’s prerogative and that the Pardons Board only acts as an advisory body.⁶ More recently, in January 2023, the Court of Appeal in Datuk Seri Anwar Ibrahim v. Mohd Khairul Azam Abdul Aziz & Another Appeal [2023] 2 CLJ 236 decided that the power of pardons can only be exercised by the YDPA personally and exclusively and that such exercise is non-justiciable.

On the other hand, the following points must be considered.

Firstly, it is important to stress that whether the YDPA can exercise the power of pardon in his discretion and whether the exercise of such function is justiciable are different, albeit related, issues. The fact that a function of the YDPA is non-justiciable does not necessarily mean that the YDPA is not bound to act on advice.

Further, the Supreme Court decisions mentioned above were prior to the amendment to the Federal Constitution introducing Article 40(1A).⁷ This provision makes clear that if the exercise of such function is one in which the YDPA is to act in accordance with advice, he shall be bound to acceptand act in accordance with the advice.

Hence, the next issue to consider is whether the power of pardon is a function in which the YDPA is to act in accordance with advice. In this regard, Article 42(4)(a) supports an affirmative answer. It provides that among others, the powers of the YDPA within Article 42 are among functions with respect to which federal law may make provision under Article 40(3), which provides:

 “Federal law may make provision for requiring the Yang di-Pertuan Agong to actafter consultation with or on the recommendation of any person or body of persons other than the Cabinet in the exercise of any of his functions otherthan

(a) functions exercisable in his discretion;

(b) functions with respect to the exercise of which provision is made in any other Article”.

Since the power of pardon falls within the functions of the YDPA in which federal law may be made, by necessary implication, the power of pardon is not a function which can be exercised by the YDPA in his discretion.

 Furthermore, Article 42(10) provides, among others, that the power of pardon in respect of Syariah offences shall be exercisable by the YDPA notwithstanding anything in Article 42. The words “Notwithstanding anything in this Article” are very broad and cover the aspects of Article 42 pertaining to the Pardons Board, as well as Article 42(4)(a) (which is the provision which makes it clear that the power of pardon is a function in which federal law may be made and hence, not discretionary).

It appears that clause (10) is to make clear that those restrictions do not apply insofar as Syariah offences are concerned. It is therefore arguable that the YDPA has unfettered discretion to grant pardon in respect of Syariah offences. This is line with the fact that the YDPA is the head of Islam in the Federal Territories of Kuala Lumpur, Labuan and Putrajaya.⁸ On the other hand, Article 42 does provide restrictions for thenon-Syariah offences, as was discussed above. The existence of clause (10) itself appears to suggest that the YDPA is to act on advice in exercising the power of pardon in respect of non-Syariah offences. At the very least, the power of pardon in respect of Syariah offences appear to be treated differently from the power of pardon in respect of non-Syariah offences. Indeed, any other construction of clause (10) and Article 42 in general would render the existence of clause (10) redundant.

 CONCLUSION

 There are indeed arguments to be made for both positions, and it would be interesting to see how the courts would consider the arguments on the construction of Article 40(1A), Article 42(4)(a) read together with Article 40(3), and Article 42(10) as discussed above. However, the hurdle of non-justiciability may be too high for the arguments to be fully fleshed out in court. Even the Special Court which is established by Article 182 of the Federal Constitution appears to only apply to the YDPA or the Ruler of a State in his personal capacity only as there is no specific provision for bringing proceedings against  the YDPA or the Ruler of a State in respect of their official capacity. ⁹

 This article is written by  Raja Nadhil Aqran (Partner) and only contains general information. It does not constitute legal advice nor an expression of legal opinion and should not be relied upon as such.

 For further information, kindly contact info@aqranvijandran.com.

Credit for header image: Bloomberg.com - Photographer Arif Kartono/AFP/Getty Images

¹ The Prison Regulations 2000 (PU(A) 325/2000) is a subsidiary regulation made pursuant to section 67 of the Prison Act 1995.

² Article 42(11) read together with Article 42(5) of the Federal Constitution.

³ Article 40(1) of the Federal Constitution.

⁴ Article 40(2) of the Federal Constitution.

⁵ See for instance, the then Federal Court in PP v. Soon Seng Sia Heng & Other Cases [1979] 2 MLJ 170 and Chiow Thiam Guan & Ors v. Superintendent Of Pudu Prisons & Anor [1983] 2 MLJ 116.

⁶ See the Supreme Court in Sim Kie Chon v Superintendent of Pudu Prison [1985] 2 MLJ 385 and Superintendent of Pudu Prison v Sim Kie Chon [1986] 1 MLJ 494.

⁷ This provision was introduced by the Constitution (Amendment) Act 1994, which came into force on 24.6.1994.

⁸ Article 3(5) of the Federal Constitution.

⁹ Article 182(2) of the Federal Constitution.

‍