A three-member bench chaired by Has Zanah Mehat said Mohd Khairul Azam Abdul Aziz’s suit is “obviously unsustainable” as it did not disclose a proper cause of action.
Has Zanah, who sat with Mohd Sofian Abdul Razak and Lee Heng Cheong, said the board’s power to pardon Anwar was not limited to sentence but also his conviction.
“There is merit in the appeal. We therefore set aside the Sept 21 (2020) High Court decision. The suit is also struck out,” she said, in allowing appeals by Anwar and the board.
Has Zanah said the bench agreed with counsel for Anwar and the board that power of pardon was non-justiciable (cannot be questioned in court) and Khairul had no legal standing to file the action.
She said the High Court judge erred in not following a list of case laws on this matter (non-justiciability) as decided by the Federal Court in the past.
She added that any proceeding in court to pursue the proprietary or otherwise of the suit is not justiciable and the court has no jurisdiction to do so.
“A decision made pursuant to the exercise of the royal prerogative of mercy cannot be varied or confirmed by the court,” she said.
According to Has Zanah, the power of pardon is expressly preserved under Article 42 of the Federal Constitution and is not limited to the sentence but also conviction.
She said in granting pardon to Anwar, Khairul’s legal right or any interest was not affected.
“The respondent (Khairul) has no standing to question the clemency or advice given to the Yang diPertuan Agong to pardon the appellant (Anwar),” she said.
The bench also ruled that the composition of the board was also properly constituted under the constitution.
Lawyers Gopal Sri Ram and J Leela represented Anwar, senior federal counsel Suzana Atan and S Narkunavathty appeared for the board. Counsel Mohamed Haniff Khatri Abdulla represented Khairul.
Not legally constituted
In throwing out the striking out applications by the government and Anwar last year, High Court judge Akhtar Tahir said evidence needed to be produced and parties had the right to cross-examine witnesses.
Khairul was seeking a declaration that the pardon given to the opposition leader was not in accordance with the law as the Federal Territories Pardons Board was not legally constituted at the time.
The lawyer claimed the composition of the board was not in accordance with Article 42 (5) to advise the King to pardon Anwar.
Khairul said the pardon came just before a Cabinet was formed and this was in violation of Articles 42 (4) and (5) of the constitution.
He said the board also did not exist at that time as a board member – then attorney-general Mohamed Apandi Ali – was on garden leave and the federal territories minister had yet to be appointed.
He also said Apandi had not assigned the solicitor-general to represent him at the meeting.
Article 42(5) states that the Federal Territories Pardons Board membership should consist of the attorney-general, the minister and at least three others to advise the King.
Anwar told a press conference on May 16, 2018 that the King had granted him full pardon for his three convictions – one for abuse of power and two for sodomy – on the basis that there was a “miscarriage of justice”.
He said the pardon was also on the basis that there was a conspiracy to condemn him and “assassinate” his political character.
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