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OCT 8 — There has been some discussion on the granting of a royal pardon to Dato’ Seri Anwar Bin Ibrahim (DSAI) by the Yang di-Pertuan Agong (YDPA). In particular, some have taken issue with the words used in granting such pardon. It is my view that as long as the word “pardon” was used, DSAI is free to contest in the PD by-elections. It might be useful to understand the nature of the power to pardon.
What is a pardon?
A pardon essentially removes the legal consequences of a criminal conviction. It does not however remove the fact of the conviction itself.
Is it not the courts’ duty to convict and acquit someone?
Yes it is. The power to pardon is distinct from the courts’ power to convict and acquit. The distinction can be summarized in this way: the court convicts and provides for the sentence, but it is the executive who carries out the sentence itself. A pardon (which is an executive power) only affects the sentence and the consequences attached to a conviction. It does not wipe out the conviction itself. As succinctly put by the English Court of Appeal in Regina v Foster  QB 115:
“In other words, the effect of a free pardon is such as, in the words of the pardon itself, to remove from the subject of the pardon, &all pains penalties and punishments whatsoever that from the said conviction may ensue, but not to eliminate the conviction itself.”
But, in reality, it would be as if the convict did not commit an offence.
Wouldn’t that undermine the role of the courts?
Arguably, but the purpose of providing the head of the Executive with such a wide power is to protect the right to life and personal liberty. The constitutional scheme recognizes the fallibility of human judgment even in the most trained mind, and considers it appropriate to that in the matter of life and personal liberty, protection should be extended by entrusting power further to some high authority to scrutinise the validity of the threatened denial of life or the threatened or continued denial of personal liberty. In simple terms, it acts as a safeguard against the harsh effects of the administration of criminal law. The Ruler is even allowed to revisit the evidence on record in the criminal trial and come to a different conclusion to that arrived by the courts. This is not an encroachment of judicial power. As summarized by the Indian Supreme Court in Kehar Singh v Union of India 1989 AIR 653:
“The president acts in a wholly different plane from that in which the Court acted. He acts under a constitutional power, the nature of which is entirely different from the judicial power and cannot be regarded as an extension of it. And this is so, notwithstanding that the practical effect of the Presidential act is to remove the stigma of guilt from the accused or to remit the sentence imposed on him”
Wouldn’t such wide powers allow for abuse?
Yes it would and in fact, it has been misused. This is why the courts in India have held that the power to pardon, and not to pardon, can be reviewed by the courts in limited circumstances. The courts can intervene if irrelevant considerations were taken into account, or if the decision was irrational, resulted in discrimination or was exercised in mala fide. Although the courts have decided that it is up to the Executive to decide what grounds are relevant when deciding whether or not to pardon someone, there are some prohibited grounds for granting a pardon. Matters such as religion, caste or political loyalty are prohibited grounds. The rule of law cannot be compromised on the grounds of political expediency and to go by, such considerations would be subversive of the fundamental principles of the rule of law and it would set a dangerous precedent.
Unfortunately, the Malaysian courts have held that the power to grant a pardon cannot be reviewed by the courts. These decisions should be revisited in light of the recent decisions by the Federal Court on the power of judicial review. There is no such thing as absolute power.
In short, there is basis to argue that the court can review the decision to pardon, or not to pardon, in the limited circumstances explained above.
So does it make any difference if a “full pardon” was granted and not a “free pardon”?
No it does not. A pardon is a pardon. The legal effect of granting a pardon is clear. It removes all legal consequences and implications from the punishment. However, it does not wipe out the fact that a crime was committed. Only a court of law can quash such a conviction. As far as elections as concerned, DSAI is free to contest in the PD by-elections.
*This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.