Article 42 of the Federal Constitution, amongst others, governs the power of the Yang di-Pertuan Agong (“YDPA”) to grant pardons, reprieves and respites in respect of offences committed (collectively referred to as “Power of Pardon”).
An issue which has arisen time and time again is whether the Power of Pardon is exercisable by the YDPA at the YDPA’s discretion or whether the YDPA has to act on the advice of the Pardons Board.
Decided cases point toward the former being the case, though there are valid arguments for the latter being the case.
Suffian LP in Public Prosecutor v Soon Seng Sia Heng  2 MLJ 170 opined:
“When considering whether to confirm, commute, remit or pardon, His Majesty does not sit as a court, is entitled to take into consideration matters which courts bound by the law of evidence cannot take into account, and decides each case on grounds of public policy; such decisions are a matter solely for the executive. We cannot confirm or vary them; we have no jurisdiction to do so. The royal prerogative of mercy, as is recognised by its inclusion in Chapter 3 of Part IV of the Constitution, is an executive power — as in Jamaica, Hinds v The Queen  1 All ER 353 372.” (Emphasis mine)
The Supreme Court in Sim Kie Chon v Superintendent of Pudu Prison  2 MLJ 385 (“Sim Kie Chon 1”) held the following:
“It is our considered view that 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. (See Hanratty and Another v Lord Butler of Saffron Walden)(1971) 115 Solicitors Journal p 386.” (Emphasis mine)
In the later decision of Superintendent of Pudu Prison v Sim Kie Chon  1 MLJ 494 (“Sim Kie Chon 2”), the Supreme Court also held:
“The Pardons Board is only an advisory body and makes no decision whatsoever as such but only tenders advice to His Majesty for the purpose of the exercise of his powers of clemency under article 42 of the Constitution.”
The relevant dictum in Sim Kie Chon 1 and/or Sim Kie Chon 2 have been approved by subsequent Federal Courts.
Further, in Dato’ Dr Zambry bin Abd Kadir v Dato’ Seri Ir Hj Mohammad Nizar bin Jamaluddin (Attorney General of Malaysia, intervener)  5 MLJ 464, the Federal Court mentioned in passing:
“The absolute prerogative powers are those which the King exercises in his discretion. They include powers of pardon, of giving honours, property and rights, franchise and treasure troves, of acts of state and a host of others, both internal and external matters. Of these the most important prerogative power is I believe, in relation to the Ruler’s prerogative in the exercise of his executive authority.” (Emphasis mine)
The Federal Court and Supreme Court have consistently taken the position that the prerogative of mercy (an umbrella term which includes the Power of Pardon) is non-justiciable.
Such decisions lean in favour of the position that the YDPA’s power of pardon is exercisable at the YDPA’s discretion.
Bound By Advice
Decisions such as Sim Kie Chon 1 and Sim Kie Chon 2 were made prior to the constitutional amendment which introduced Article 40(1A) of the Federal Constitution.
Article 40(1A) of the Federal Constitution provides:
“In the exercise of his functions under this Constitution or federal law, where the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or after considering advice, the Yang di-Pertuan Agong shall accept and act in accordance with such advice.” (Emphasis mine)
Emeritus Prof. Datuk Dr. Shad Saleem Faruqi, the holder of the Tunku Abdul Rahman Chair at the Faculty of Law, Universiti Malaya, is of the view that:
“… in the light of Article 40(1A), the Malaysian position is that at the federal level, the grant of pardon is not a discretionary power and must be exercised on advice.” (Emphasis mine)
Further, Sim Kie Chon 1 and Sim Kie Chon 2 referred to Article 42 of the Federal Constitution without considering Article 40(3) of the Federal Constitution.
Article 42(4)(a) of the Federal Constitution, the article on the Power of Pardon, makes reference to Article 40(3) of the Federal Constitution:
“The powers mentioned in this Article—
(a) are, so far as they are exercisable by the Yang di-Pertuan Agong, among functions with respect to which federal law may make provision under Clause (3) of Article 40;” (Emphasis mine)
Article 40(3) of the Federal Constitution provides:
“Federal law may make provision for requiring the Yang di-Pertuan Agong to act after consultation with or on the recommendation of any person or body of persons other than the Cabinet in the exercise of any of his functions other than—
(a) functions exercisable in his discretion;
(b) functions with respect to the exercise of which provision is made in any other Article.” (Emphasis mine)
Since the Power of Pardon is a matter which federal law may make provision under Article 40(3) of the Federal Constitution, this would by implication mean that the Power of Pardon is not a function exercisable by the YDPA in his discretion.
In a significant departure from previous decisions such as Sim Kie Chon 1 and Sim Kie Chon 2, Akhtar bin Tahir J in Mohd Khairul Azam bin Abdul Aziz v Lembaga Pengampunan Wilayah Persekutuan & Anor  MLJU 1691 held that:
“In matters of granting pardon the Federal Constitution makes it clear that the YDPA must act not only on the advice of the Pardons Board but must also accept the written opinion of the AG.”
Akhtar bin Tahir J’s decision was subsequently reversed on appeal. The Court of Appeal affirmed the previous decisions of the superior courts and held that, “The power to grant pardons can only be exercised by the YDPA personally and exclusively and such exercise is not justiciable.”
The issue at hand is nevertheless a live issue notwithstanding apex court decisions such as Sim Kie Chon 1 and Sim Kie Chon 2 (and subsequent decisions which affirmed Sim Kie Chon 1 and/or Sim Kie Chon 2).