FEBRUARY 6 — Prime Minister Datuk Seri Anwar Ibrahim on Monday said he took responsibility for ensuring that the Pardons Board heard Najib’s application. Anwar said that as prime minister, it was his responsibility to ensure that all pardon applications received were to be given prompt attention, including Najib’s.
Anwar however denied Najib’s application was sped up.
Anwar should be commended for saying that he would ensure that all pardon applications be given prompt attention.
One may recall that one of the issues raised in the case of Juraimi Husin v Pardons Board, State of Pahang & Ors (2002) was the inordinate delay between the presentation of the clemency petition and the decision-making process leading to the rejection of the said petition.
In that case, Juraimi Husin (the plaintiff), together with two others, had been convicted of murder and sentenced to death by the High Court at Temerloh. His appeal to the Court of Appeal and the Federal Court had been dismissed.
On June 30, 1999, he petitioned for clemency to the Sultan of Pahang. His petition was rejected on April 4, 2001. By way of an originating summons filed in the High Court at Kuala Lumpur, the plaintiff applied for several declaratory orders pertaining to the rejection of the clemency petition.
Meanwhile, the defendants applied for the originating summons to be dismissed on the ground that the decision of the Pardons Board was not justiciable. During the hearing of the defendants’ application, the plaintiff’s counsel urged the court to remit the matter to the Federal Court for the apex court to decide on the constitutional issues raised.
The High Court, however, dismissed the plaintiff’s application. On appeal to the Court of Appeal, the appellate court allowed the plaintiff’s appeal and ordered the hearing of the originating summons in the High Court to be stayed and directed the High Court to remit to the Federal Court the question of whether the decision-making process of the decision by the Sultan of Pahang under Article 15 of the Laws of the Constitution of Pahang, read together with Article 42 of the Federal Constitution, was justiciable.
Counsel for the plaintiff stated that although there could be no judicial review or justiciability of the decision of the Pardons Board on the merits, the decision-making process resorted to by the Board could be examined to consider whether it was in line with the spirit of the relevant constitutional provisions.
Before the Federal Court and at the outset of his submission, the learned counsel for the plaintiff, Karpal Singh, who was assisted by Jagdeep Singh Deo, Gobind Singh Deo and Ram Karpal Singh, contended that the word “law” in Article 5(1) of the Federal Constitution included procedure.
While he conceded that there could be no judicial review or justiciability of the decision of the Pardons Board on the merits, he contended that the decision-making process resorted to by the Board could be examined to consider whether it was in line with the spirit of the relevant constitutional provisions.
The learned counsel urged the Court to consider whether Article 42(4)(b) and 42(8) of the Federal Constitution had been complied with by the Pardons Board.
While there was no time period when the Pardons Board must meet to consider and dispose of the clemency petition under Article 42(8), the learned counsel argued that Article 160 and Section 38 in the 11th Schedule to the Federal Constitution necessitated the Board to meet with speed.
The learned counsel further argued that the inordinate delay between the presentation of the clemency petition dated June 30, 1999 and the decision-making process leading to the rejection of the said petition on April 4, 2001 amounted to the contravention of Section 38 in the 11th Schedule and Article 5(1) of the Federal Constitution. During the course of submissions however, the learned counsel informed the Court that he was not proceeding with this argument.
The Court was therefore left with one question of law to be decided — that is, whether the decision-making process of that decision by His Royal Highness the Sultan of Pahang under Article 15 of the Laws of the Constitution of Pahang, read together with Article 42 of the Federal Constitution, was justiciable.
The short answer was “No”.
The Court referred to its predecessor Supreme Court’s decision in the case of Sim Kie Chon v Superintendent of Pudu Prison that the power under Article 42 of the Federal Constitution is not susceptible or amenable to judicial review.
Chief Justice of Malaya Ahmad Fairuz (as he then was), who delivered the judgment of the Court, went on to say as follows:
“We are of the view that any attempt to make the decision-making process justiciable would indirectly make the decision itself justiciable. Hence we answered the question in the negative.”
Imagine if pardon applications, including Najib’s, are not given prompt attention.
Najib’s application is one of those things where you’re damned if you do and damned if you don’t.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
