PUTRAJAYA (Jan 10): The Federal Court have dismissed an application by lawyer Mohd Khairul Azam Abdul Aziz for leave to challenge the legality of a royal pardon granted by the Yang di-Pertuan Agong (YDPA) to Prime Minister Datuk Seri Anwar Ibrahim in 2018.
In a unanimous decision, a three-judge bench of the Federal Court led by Chief Justice Tun Tengku Maimun Tuan Mat upheld a decision by the Court of Appeal in 2021 which ruled that the decision made pursuant to an exercise of a royal prerogative of mercy cannot be varied or confirmed by the court, and as such is not justiciable.
“The issue of non-justiciability is settled and this case does not warrant a departure from the precedent,” she said in her short judgment via Zoom.
Non-justiciability essentially means that the YDPA's power of cannot be argued in court and does not warrant departure from established principal.
Khairul Azam’s lawyer Mohamed Haniff Khatri Abdulla argued before the bench — which also consisted of Datuk Nalini Pathmanathan and Datuk Vernon Ong Lam Kiat — that Anwar's sentence was pardoned but not his conviction.
He also said the pardon's board, which eventually granted the pardon that led to Anwar's release, was not properly constituted as the attorney general at that time was on "garden leave" and he had appointed someone else to stand in his stead at the meeting. He said the question is, whether the AG has the power to appoint someone to go for the meeting.
Anwar’s counsel J Leela countered his argument by saying that the law does provide for a pardon for conviction and sentence, and that the pardons board and the ultimate decision maker the Yang Di-Pertuan Agong (YDPA) are entitled to take into account all circumstances.
“The law does provide for a pardon for a conviction and sentence, the Federal Territories Pardons Board and the YDPA are entitled to take into account all circumstances. The YDPA’s power is wide,” she said.
Article 42(1) of the Federal Constitution states:
“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.”
The accepted general interpretation of the provision is that:
1. YDPA has the power to grant pardons for all offences committed in KL, Labuan, and Putrajaya
2. The Sultan of each State has the power to grant pardons for all offences committed within his State
Haniff Khatri also argued that these questions of law posed to fhe Federal Court are applicable as they relate to the pardon, which he said would be applicable to be answered as former prime minister Datuk Seri Najib Abdul Razak has also asked for a royal pardon on his 12 year jail sentence. "These questions will arise on Najib's pardon," he said.
Tengku Maimun said that: “… there is no basis to suggest that there is any misrepresentation in the advice conferred (by the YDPA),”
The bench also ruled that there is no evidence to suggest that the pardon document makes any reference to the fact that a conviction was set aside.
"On conviction, we do not find that the pardon document makes any reference to the fact that a conviction was set aside.
“There is no question of the courts power being usurped. Finally we find that the matter has been rendered academic,” she said, before dismissing the leave application without making orders as to costs.
High Court judge Datuk Akhtar Tahir on Sept 21, 2020 dismissed bids by Anwar and the Pardons Board to strike out Mohd Khairul Azam’s suit, and ruled the lawyer as having locus standi (legal standing) to file the challenge.
The lawyer filed the suit in February 2020, where he sought a declaration that the royal pardon bestowed on Anwar, following his sodomy conviction involving Mohd Saiful Bukhari Azlan, be declared null and void.
Mohd Khairul Azam in his statement of claim said the Federal Court on Feb 10, 2015 affirmed a conviction against Anwar pertaining to sodomy, and maintained the five-year jail sentence meted out by the Court of Appeal. Anwar went on to serve his sentence.
However, after the 14th general election in May 2018 and the new Pakatan Harapan government was formed, Mohd Khairul Azam claimed that several illegal and unconstitutional moves were made to ensure that Anwar was pardoned and released from his sentence.
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