Tuesday, October 19, 2021

Appeals court strikes out lawyer’s suit challenging legality of Anwar’s pardon

A three-man bench says Mohd Khairul Azam Abdul Aziz had no right to question the clemency or the advice given by the Pardons Board to the Agong in respect to the granting of the pardon.

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The Court of Appeal today struck out a lawsuit filed by a lawyer questioning the legality of the royal pardon granted to Anwar Ibrahim for his sodomy conviction.

In striking out the lawsuit by Mohd Khairul Azam Abdul Aziz, the court allowed the appeals by Anwar and the Pardons Board against a High Court’s dismissal of their applications to strike out the lawsuit.

A three-member bench comprising Has Zanah Mehat, Mohd Sofian Abd Razak and Lee Heng Cheong, in allowing the appeals by Anwar and the Pardons Board, held that the claims made by Khairul against the appellants were unsustainable as he did not disclose any reasonable cause of action against them.

In the court’s decision, Has Zanah who led the bench said Khairul had no right to question the clemency or the advice given by the Pardons Board to the Yang-di Pertuan Agong in respect to the granting of the pardon.

“We find the process of clemency and granting of pardon by the Yang-di Pertuan Agong to the appellant (Anwar) does not in any manner or way attack the respondent’s (Khairul) personal or legal or any right or interest,” she said.

She said a decision made pursuant to the exercise of the royal pardon prerogative cannot be varied or confirmed by the court and hence is not justiciable.

The power of pardon is preserved under Article 42 of the Federal Constitution, she said, adding that the power is not limited to just the sentence but also the conviction.

She said the court found that the High Court judge had erred in not following the established list of court authorities decided by the apex court.

The court also found that the Pardons Board was lawfully and properly constituted under the Federal Constitution, she added.

On Sept 21 last year, the High Court dismissed the applications by Anwar and the Pardons Board to strike out the lawsuit after finding that Khairul had locus standi to initiate the legal suit as he is a member of the public and a qualified person as lawyer.

Anwar filed the striking-out application on grounds that Khairul had no locus standi to file the originating summons and that it was frivolous, an embarrassment and an abuse of the court process.

Khairul, who filed the originating summons on Feb 26 last year naming the Pardons Board and Anwar as respondents, claimed that several unconstitutional actions had been taken to ensure that Anwar received a pardon which released him from prison following the 14th general election in 2018.

He claimed that the pardon granted to Anwar by the Yang di-Pertuan Agong was in contravention of Articles 42 (4) and (5) of the Federal Constitution in view of the fact that pardons granted by the Agong should be based on the advice of the Pardons Board which Khairul argued had not yet been formally formed following the general election on May 9, 2018, and the formation of the new government.

Anwar had been sentenced to five years’ jail for sodomising his aide, Mohd Saiful Bukhari Azlan, with the conviction and sentence affirmed by the Federal Court on Feb 10, 2015.

In the proceedings conducted online today, the court heard submissions from Anwar’s counsel Gopal Sri Ram, senior federal counsel Suzana Atan, who appeared for the Pardons Board, and lawyer Mohamed Haniff Khatri Abdullah, representing Khairul.

Sri Ram submitted that the High Court judge did not have the power to disobey a binding Federal Court judgment in Sim Kie Chon vs Superintendent of Pudu Prison & Ors which states that the power of pardon provided 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.

Suzana argued that Khairul should have established how the Pardons Board’s decision had affected him and that the reason he gave in his statement of claim did not fulfil the legal principles established by a recent Federal Court decision.

Meanwhile, Haniff submitted that there can only be a pardon for the sentence and not for the conviction, adding that those issues had never been decided in any court and that the suit should go for trial.

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