SINCE time immemorial, sovereigns across the world have enjoyed the privilege of pardoning offenders. In India, Singapore and the United States, the power to pardon is vested with their presidents through their respective constitutions.
It is axiomatic to observe that the nature and extent of the power to pardon would be dependent on the words declared in the respective constitutions or statutes of each country and hence, any comparison made to such jurisdictions would only be applicable or persuasive if they are identical or similar.
Therefore, the provisions for pardons in other countries such as India, Singapore, Hong Kong, and the United Kingdom must be examined based on the wording expressed in their respective document before they can be applied in Malaysia.
Article 42 states that it is specifically the Yang di-Pertuan Agong (not the Pardons Board) that has the power to grant pardons, reprieves and respites in respect of all offences committed in the Federal Territories.
It is not in doubt that the YDPA is not part of and a member of the Pardons Board but instead, His Majesty only presides, meaning His Majesty directs and regulates the board’s proceedings.
This is evidently clear by virtue of Article 42(5) which states that the board shall consist only of three members appointed by the YDPA, the attorney-general and the Federal Territories minister only whilst Article 42(8) states: “The Pardons Board shall meet in the presence of the Ruler and he shall preside over it”.
There have been considerable debates and thoughts put forth that the YDPA is bound and must necessarily follow the advice of the Pardons Board in that His Majesty has no discretion and, therefore cannot act independently in arriving at a decision.
This line of reasoning is perhaps based on the wording of Article 40(1A) and Article 42(4)(b). Article 40(1A) states that the YDPA in exercising his functions under the constitution is to act in accordance with, on or after considering advice.
However, Article 40(1A), cannot be read in isolation and must be read together with the other Articles in the constitution, specifically in relation to Articles 40(1) and 40(2).
Article 40(1) states that the YDPA in the exercise of his functions shall act in accordance with the advice of the cabinet or of a minister acting under the general authority of the cabinet, except as otherwise provided in the constitution.
Meanwhile, Article 40(2) states that the YDPA may act in his discretion such as in appointing the prime minister, and withholding consent for dissolution in any other instances mentioned in the constitution.
The Federal Court in the case of Dato’ Seri Anwar bin Ibrahim v Perdana Menteri Malaysia & Anor [2010] held:
“It must be properly observed that Art 40 divides the functions of the Yang di-Pertuan Agong into two distinct categories ie those functions that he may exercise in his discretion and those that he must exercise or act in accordance with ministerial advice.
“Except for his function under Art 40(2) which provides that the Yang di-Pertuan Agong may act in his discretion, the other functions to be exercised by him under the Constitution or federal law shall be exercised in accordance with the advice of the cabinet or minister acting under the general authority of the cabinet.”
Hence, with regards to Article 40(1A), the YDPA is only required to act on advice where required under the constitution if it relates to advice by the cabinet or ministers acting under the authority of the cabinet.
For instance, under Article 43(2)(b), where it expressly states that the YDPA shall appoint ministers on the advice of the prime minister or Article 145(1) where the YDPA is to appoint the attorney-general on the advice of the prime minister.
The Pardons Board is an independent body established under Articles 42(5) comprising the attorney-general, Federal Territories minister and three persons appointed as members of the board at the sole discretion of the YDPA pursuant to Article 42(6) which does not state that their appointments are made under advice.
The Pardons Board is neither part of the cabinet nor a government agency.
With regards to Article 42(4)(b), it is stated that:
The powers mentioned in this Article –
(b) shall, so far as they are exercisable by the Ruler or Yang Di-Pertua Negeri of a State, be exercised on the advice of a Pardons Board constituted for that State in accordance with Clause (5)
Article 42(4)(b) specifically states only rulers of states and the Yang Di-Pertua Negeri of a state shall exercise their powers of pardon on the advice of the Pardons Board. In this sense, Article 42(4)(b) had expressly excluded the YDPA and therefore it would appear that the YDPA is not bound to act on the advice of the Pardons Board when exercising the discretion to pardon.
Further, Article 42(9) states that before the Pardons Board tenders its advice, it is the board (not the YDPA) that shall consider any advice rendered by the attorney-general. Nowhere in Article 42 expressly states that the YDPA in granting pardons must act on the advice of the Pardons Board.
In this sense, in respect of Articles 42, 42(4)(b) and 42(9), the drafters of the constitution had intended silence to rule out a particular application and silence signifies an expectation that nothing more need be said in order to effectuate the relevant provision or its operation objective. An inference cannot be drawn from the silence and its application cannot be expanded or given effect to non-existent words.
It is pertinent to note that the courts in Malaysia have held that Article 49(2) does not make it mandatory for such an opinion to be rendered by the attorney-general and that the YDPA is not bound by any advice so rendered by the board.
For instance, in the case of Karpal Singh v. Sultan Of Selangor [1987], a case concerning the process of clemency, the court held:
“Clause (9) of Article 42 cited by Mr, Karpal Singh does not make it mandatory on the ruler to act on the advice. It only makes it obligatory on the part of the Pardons Board as constituted under clause (5) of Article 42 constituting of special persons to consider a written opinion which the Attorney General may have delivered thereon before tendering advice.”
Some have also put forth that the principles enunciated in the United Kingdom, India or Singapore where the king or president does act on advice in granting pardons and therefore are persuasive, if not applicable, to Malaysia.
However, it is imperative to be conscious of what was said by Raja Azlan Shah J (as His Royal Highness then was) in Loh Kooi Choon v. Government of Malaysia [1975] held that:
“Whatever may be said of other Constitution, they are ultimately of little assistance to us because our Constitution now stands in its own right and it is, in the end, the wording of our Constitution itself that is to be interpreted and applied and this wording ‘can never be overridden by the extraneous principles of other Constitutions…Each country frames its Constitution according to its genius and for the good of its own society. We look at other Constitutions to learn from their experiences and from a desire to see how their progress and well-being is ensured by the fundamental law.”
The Federal Court in the case of Public Prosecutor v. Kok Wah Kuan [2007] held:
“So, in determining the constitutionality or otherwise of the statute under our Constitution by the court of law, it is the provision of our Constitution that matters, not a political theory by some thinkers…The ultimate touchstone of constitutionality is the Constitution itself and not any general principle outside it.”
It has to be appreciated that the UK does not have a written constitution and the articles in the constitutions of Singapore and India governing pardons are different to Malaysia because in their constitutions, there are express wordings in relation to acting on advice.
Meanwhile in the UK, in the absence of a written constitution, are premised on conventions and constitutional common law and the Criminal Appeals Act 1995 as opposed to Malaysia where the constitution reigns supreme.
In India, the power to pardon falls under Part V of the Indian Constitution where Article 72 grants the president the power to pardon whilst Article 74 states a council of ministers with the prime minister at the head to aid and advise the president who shall, in the exercise of his functions, act in accordance with such advice.
The Indian Supreme Court in the case of Maru Ram v Union of India and others [1981] held that the power under Article 72 is to be exercised on the advice of the central government and not by the president on his own and that the advice of the government binds the head of the republic.
In Malaysia, there is no specific mention in Article 42 that the YDPA must only act and decide on the advice of the Pardons Board.
In Singapore, it is an executive power exercised pursuant to Article 22P of Singapore’s constitution which specifically states that the president in granting a pardon shall act on the advice of the cabinet. In the case of Yong Vui Kong v Attorney General [2011], Singapore’s Highest Court held:
“It, therefore, follows that if, hypothetically speaking, conclusive evidence is produced to the court to show that the cabinet never met to consider the offender’s case at all, or that the cabinet did not consider the Art 22P(2) materials placed before it and merely tossed a coin to determine what advice to give to the President…the cabinet would have acted in breach of Art 22P(2).
“If the courts cannot intervene to correct a breach of Art 22P of this nature, the rule of law would be rendered nugatory. In this regard, it should be noted that in Singapore…the making of a clemency decision pursuant to Art 22P is now “not a private act of grace from an individual happening to possess power …”
The same applies in Hong Kong that the power of clemency is justiciable as the decision is made by the chief executive of the Hong Kong Special Administrative Region pursuant to Article 48(12) of the Basic Law of the Hong Kong Special Administrative Region as was held in the case of Ch’ng Poh v The Chief Executive of the Hong Kong Special Administrative Region Case No 182 [2002] where the court said:
“…the Basic Law gave the SAR Chief Executive prerogative powers, it did not seek to place him above the law as his powers were defined and constrained by the Basic Law, the office of SAR Chief Executive being a creature of that law.”
In the UK case of R v Secretary for the Home Department, ex parte Bentley [1993] the court held that it had the jurisdiction to review the exercise of royal prerogative of mercy as it is exercised by the home minister, who is a member of the executive.
Hence, in the above countries, there are express wordings either in the constitution or statute that decisions on pardons must be acted upon advice, are not exercised personally at the discretion of the king or president, and therefore are amenable to review by the courts.
However, in Malaysia, the courts have consistently held that the power and decision to pardon is non-justiciable and that it is not amenable to review by the courts – thereby fortifying the notion that the grant of pardon by the YDPA is done personally at the behest and mercy of His Majesty.
In this sense, to argue that the grant of pardon is an executive act, then it must necessarily mean that decisions relating to pardons cannot be immune from being reviewed by the courts based on the doctrine of separation of powers.
In Sim Kie Chon v. Superintendent Of Pudu Prisons & Ors [1985] the court held:
“… [P]roceedings in Court aimed at questioning the propriety or otherwise of such a decision [viz, a decision made in the exercise of the prerogative of mercy] are…not justiciable. By the same token[,] a contention of any violation of the fundamental right which rests wholly on or [is] dependent upon such an allegation is also not justiciable.
“It is our considered view that the power of mercy is a high prerogative exercisable by the Yang di-Pertuan Agong…,who acts with the greatest conscience and care and without fear of influence from any quarter…A decision made pursuant to an exercise of royal prerogative of mercy cannot be varied or confirmed by the courts there being no jurisdiction to do so.”
The case of Sim Kie Chon (supra), was cited with approval by the Federal Court in the case of Letitia Bosman v. PP & Other Appeals [2020] where the apex court held:
“The power of pardon provided for under art. 42 of the Federal Constitution is, however, a prerogative of mercy exclusively vested in the YDPA or Ruler of any State in Malaysia.”
Again in Superintendent of Pudu Prison & Ors v Sim Kie Chon [1986], Eusoffe Abdulcader SCJ (as he then was) speaking for the then Supreme Court said:
“The respondent by these proceedings is in our view in effect attempting to circuitously challenge the exercise by His Majesty of his powers of clemency in this case under article 42 of the Constitution which he is expressly precluded from doing…”
The Court of Appeal in the case of Datuk Seri Anwar Ibrahim v Mohd Khairul Azam A Abdul Aziz & Another appeal [2023] had on occasion held:
“The power to grant pardons can only be exercised by the YDPA personally and exclusively and such exercise is not justiciable. There is no basis for the respondent in this case to impugn the YDPA’s exercise of his exclusive power to grant the Pardon….The long and consistent established position of the law in Malaysia is that the prerogative power of the YDPA under art. 42 of the Federal Constitution is non-justiciable.”
The Federal Court in Dato’ Dr Zambry bin Abd Kadir v Dato’ Seri Ir Hj Mohammad Nizar bin Jamaluddin (Attorney General of Malaysia, intervener) [2009] stated:
“The absolute prerogative powers are those which the King exercises in his discretion. They include powers of pardon…”
It would, therefore, be reasonable to conclude that based on the constitution and the above previous judicial pronouncements, the YDPA is not bound to act and decide only on the advice of the Pardons Board and retains discretionary power.
To state to the contrary, would invariably infer, that it is the Pardons Board that actually wields the power to grant pardons, reprieves and respites on such terms as the board deems fit – and this would render the wordings in Article 42(1) that gives the power to pardon to the YDPA somewhat superfluous.
It would therefore appear, at best, that the Pardons Board’s role is merely advisory in nature. – January 12, 2025
Datuk Seri Rajan Navaratnam is a senior lawyer and writes frequently on the law