FEBRUARY 4 — In “Power to grant pardons is personal to the monarch and non-justiciable” I referred to the then Supreme Court decision in Sim Kie Chon v. Superintendent of Pudu Prisons & Ors [1985] where the Court stated:
“The power of pardon provided for under Article 42 of the Federal Constitution is... a prerogative of mercy exclusively vested in the [Yang Di-Pertuan Agong] or Ruler of any State in Malaysia.”
A decision under Article 42 of the Federal Constitution is a decision of the Yang di-Pertuan Agong (YDPA) himself, exercising a power of high prerogative of mercy. Chief Justice Abdul Hamid (as he then was), delivering the judgment of the Court, took occasion to describe the power as follows:
“The power of mercy is a high prerogative exercisable by the Yang di-Pertuan Agong or the Rule of a State or the Yang di-Pertuan Negeri, as the case may be, who acts with the greatest conscience and care and without fear of influence from any quarter.”
Perhaps we should also refer to the judgment of Federal Court judge Vernon Ong in the recent case of Datuk Seri Anwar Ibrahim v Kerajaan Malaysia & Anor [2021]. The judgment may be a minority judgment, but the learned judge’s description of the institution of the YDPA is worth noting. His Lordship said:
“The institution of the YDPA as a constitutional monarch and Supreme Head of the Federation was created by the [Federal Constitution]: Art 32. Although the YDPA is the formal head of the executive branch, the YDPA is required to act on the advice of the Cabinet or any Minister authorised by the Cabinet: Arts 39 and 40.
“There are, however, certain exceptions under the [Federal Constitution] which provide that the YDPA may act in his personal discretion — notably, these include: (i) the appointment of the Prime Minister (Art 40(2)(a)); (ii) the withholding of consent to a request for dissolution of Parliament (Art 40(2)(b)); (iii) the Proclamation of Emergency (Art 150(1)); (iv) the requisition of a meeting of the Conference of Rulers concerned solely with their privileges, position, honours and dignities (Art 40(2)(c)); and (v) the prerogative of mercy (Art 42).
If a decision under Article 42 is a decision of the YDPA himself, acting in his personal discretion, is His Majesty to explain the reasons for his decision?
His Majesty “acts with the greatest conscience and care and without fear of influence from any quarter”.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
