Up to discretion of Agong to proceed with hearing pardon petition
(Bernama) – Although a petition for a royal pardon has been filed by a convicted person, the Yang di-Pertuan Agong cannot be compelled to get the Pardons Board to meet or to make a decision on the matter as it is up to the King’s discretion.
Constitutional law expert Tan Sri Dr Rais Yatim said that based on Article 42 of the Federal Constitution, the Yang di-Pertuan Agong had the prerogative of whether to call the relevant individuals to proceed with the Pardons Board meeting.
“If the Yang di-Pertuan Agong does not wish to listen to it (request for pardon), nothing can compel His Majesty to do so,” he said when contacted today.
Rais said likewise in the case of Datuk Seri Anwar Ibrahim seeking a royal pardon for his sodomy conviction, if the Yang di-Pertuan Agong diagreed to it or declined to attend the meeting, nothing could be done about it as it was the King’s prerogative.
Yesterday, Anwar’s wife Datuk Seri Dr Wan Azizah Wan Ismail and two of her daughters, Nurul Izzah and Nurul Nuha, submitted a petition to the Palace for a royal pardon and they also sent a copy of the petition to Dewan Rakyat Speaker Tan Sri Pandikar Amin Mulia.
If a royal pardon is granted, Anwar will remain as the Member of Parliament for Permatang Pauh and Opposition Leader although he was found guilty by the Federal Court of sodomising his former aide Mohd Saiful Bukhari Azlan six years ago.
Rais, who is also socio-cultural adviser to the government, said for the Federal Territories of Kuala Lumpur, Putrajaya and Labuan, the Pardons Board comprised the Yang di-Pertuan Agong, Attorney-General or his representative and the minister in charge of the Federal Territories.
At the state-level, it is made up of the head of state, namely the Sultan, Raja (for Perlis), Yang Dipertuan Besar (for Negeri Sembilan) or Yang Dipertua Negeri (for states without a royal ruler) and three representatives from the Attorney-General’s Chambers.
On the mode or procedure to be applied and time-frame set before a decision was made, Rais said these were not mentioned in Article 42 or any other provision in the Federal Constitution in considering or accepting an appeal or petition.
“This is because the role of the Pardons Board is outside the ambit of normal laws,” said Rais who has a doctorate in “Civil Law, Constitution and Human Rights” from King’s College, University of London
Rais said the situation was based on the court’s decision on the Juraimi Hussin’s case in 2001, whereby the Supreme Court (now known as the Federal Court) ruled that there was no time-frame set for the Pahang Pardon’s Board to make its decision on the petition.
“In this case, the applicant had asked for a time-frame be set for hearing of the appeal for pardon. The court (Supreme Court) ruled that it was not bound by time as it involved human action or the discretion of members of the Pardons Board,” he said.
On Sept 12, 2001, Juraimi, a bomoh’s assistant, who was sentenced to death for killing a state assemblyman in 1993, failed in his bid to obtain the court’s confirmation on a constitutional question pertaining to the rejection of his petition for pardon by the Pahang Sultan.
The five-man panel led by Court of Appeal president Tan Sri Wan Adnan Ismail, in their unanimous decision rejected the constitutional issue raised by Juraimi.
Following that decision, Juraimi, 31, had no legal recourse to set aside the death sentence passed on him and bomoh couple, Maznah Ismail, better known as Mona Fandey, 45, and Mohamed Affandi Abdul Rahman, 44, for murdering Batu Talam assemblyman Datuk Mazlan Idris at a house in Kampung Peruas, Ulu Dong, Raub, between July 2 and 18, 1993.
Senior law lecturer at the International Islamic University Malaysia (IIUM), Assoc Prof Dr Shamrahayu Abdul Aziz said the decision by Anwar’s family to file a petition to Istana Negara for a royal pardon should make the people realise the importance of an institution that protected the nation’s sovereignty.
“Malaysians who make uncalled for comments on the royal institution do not understand the importance of this institution.
“It’s clear in this case, the importance of the royal institution is only realised when faced with a problem or difficult situation. All this while when the situation was alright, some thought it was useless.
“But if we understand the spirit of the constitution and uphold the position of the rulers, in this context the rulers are the protectors of the people.
“Whether an individual is wrong, or whether the person is a Malay or non-Malay, the ruler is looked up to for compassion and the ruler’s rights are recognised by the Federal Constitution,” she said.
Asked whether the victim in the (sodomy) case could challenge the decision to pardon Anwar after the Yang di-Pertuan Agong had listened to the advice of the other Pardons Board members, Shamrahayu said the process would stop there.
“In this case, we have reached the highest level in the process of dispensing justice. When one party is dissatisfied, the law still provides the space from redress (through the Pardons Board and prerogative of the King).
“But if the space for mercy is still questioned, is there any more room left? It has to stop there, otherwise the whole system would be hollow,” she said.
