Nothing to stop Anwar from contesting in PD by-election

It was widely reported in the media that two electors in the Port Dickson parliamentary constituency have filed applications in the High Court to invalidate the resignation of their former MP Danyal Balagopal Abdullah, and to challenge the pardon granted to Anwar Ibrahim by the Yang di-Pertuan Agong pursuant to Article 42 (1) of the constitution on grounds that the Pardons Board was not properly constituted under Article 42 (5) and, as such, that Anwar is disqualified from contesting under Article 48 (1) (e) by virtue of his conviction and sentence, and remains so disqualified unless the impediment is removed by the sovereign under Article 48 (3) of the constitution.

Both applications filed through the same law firm have obtained the support of an NGO calling itself Concerned Lawyers for Justice (CLJ) and lawyer-activist Siti Kasim, a well-known critic of Anwar, who are convinced that the PKR president-elect is disqualified from contesting in the by-election and that there is no constitutional basis to the “full pardon” granted by the sovereign since the supreme law only makes reference to the word “free pardon”. Unfortunately, neither word is defined in the constitution or the Interpretation Acts 1948/1967.

In my view, both applications are unsustainable, frivolous, vexatious and an abuse of process. The entire premise of the applications is without merit and calculated to embarrass Anwar for reasons that have nothing to do with the law but rather for political purposes or a personal agenda arising from disdain and a mistrust of Anwar and his family.

It is unfortunate that freedom of expression under the guise of political liberalism is being used by certain parties with impunity to malign others supposedly on moral and ethical grounds, when in reality they themselves do not necessarily practise what they preach in their public or private lives.

I will first deal with the application regarding the resignation of Danyal as Port Dickson MP. The constitution is very clear in Article 51 that any member of the house of representatives may resign his membership by writing under his hand addressed to the speaker of that house, without the need to attribute any reasons for his resignation. The then-Supreme Court in Datuk Ong Kee Hui v Sinyium Anak Mutit [1983] 1 MLJ 36, in very erudite language said as follows: “Tenure of office of a member of Parliament is at his own pleasure except of course when he commits any acts disqualifying him from being a member. Apart from disqualification it is up to him whether he wishes to resign or not. There is no question of his seat being forfeited at the instance of any person or party on the ground that he has committed a breach of contract or arrangement with this person or party nor is there any question of him being removed from the house at such instance.”

There is no evidence that Danyal was forced to vacate his seat at the insistence of Anwar or PKR by reason of any contract or arrangement, which in any event would be void as being contrary to public policy, even if it existed. Danyal himself has denied this and he has also denied that he was paid RM25 million to resign.

By resigning his seat, under Article 48 (6) of the constitution, Danyal is disqualified from being a member of the house of representatives for five years from the date his resignation took effect.

The Port Dickson electors cannot force Danyal not to resign his seat and to remain as their MP contrary to his own wishes. To say otherwise would infringe upon Danyal’s right to freedom of association (which includes his right to disassociate from his constituents) as guaranteed in Article 10 (1) (c) of the constitution and affirmed by the then-Supreme Court in Dewan Undangan Negeri Kelantan & Anor. v Nordin bin Salleh & Anor. [1992] 1MLJ 697.

The second application to invalidate the pardon granted to Anwar by the sovereign ought to be dismissed in limine because it is obviously unsustainable. The power to pardon under Article 42 (1) is in the exercise of the high prerogative of mercy by the sovereign. It is one of the many examples of the exercise of the royal prerogative that is not susceptible or amenable to judicial review because the nature and subject matter in respect of which it is exercised is not justiciable by the courts. This was made amply clear by the House of Lords in Council of Civil Service Unions & Ors. v Minister for the Civil Service [1985] AC 374.

This important principle of law was applied by our then-Supreme Court in Sim Kie Chon v Superintendent of Pudu Prisons & Ors. [1985] 2 MLJ 385.

In the earlier Federal Court decision of Lim Hang Seoh v PP [1978] 1 MLJ 68, it was stated that: “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. (See also G Kista Gowd & Anor. v State of Andhra Pradesh).”

Similarly, the Federal Court in Chiow Thiam Guan v Superintendent of Pudu Prison and the Government of Malaysia [1983] 2 MLJ 116 held that a decision made pursuant to an exercise of a royal prerogative of mercy cannot be varied or confirmed there being no jurisdiction in the courts to do so.

In Sim Kie Chon (supra), the Supreme Court held that: “In our judgment proceedings in court aimed at questioning the propriety or otherwise of such a decision are therefore not justiciable. By the same token a contention of any violation of the fundamental right which rests wholly on or 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 or the ruler 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 Anor. v Lord Butler of Saffron Walden).”

The applicant in Anwar’s case has sought to argue on the grounds of the constitutionality of the grant of the pardon by the sovereign where the Pardons Board was purportedly not properly constituted because at that time the attorney-general, Mohamed Apandi Ali, was on administrative leave and there was no federal territories minister appointed to sit in the Pardons Board and advise His Majesty as required under Article 42 (5) and (11) of the constitution.

However, in Sim Kie Chon (supra), his Lordship Abdoolcader SCJ held that: “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 of the constitution which he is expressly precluded from doing by virtue of Article 32 (1) of the constitution which stipulate that His Majesty shall not be liable to any proceedings whatsoever in any court. The High Court of Australia in Horwitz v Connor held (at p. 40) that no court has jurisdiction to review the discretion of the governor in council in the exercise of the prerogative of mercy, and a similar attitude toward the royal prerogative of mercy was adopted by the English Court of Appeal in Hanratty v Lord Butler of Saffron Walden.”

In Anwar’s case this is exactly what the applicant is seeking to do. In fact, Siti Kasim went further to argue that His Majesty may have been influenced by extraneous considerations such as the PH consensus on seeking a royal pardon for Anwar as contained in its election manifesto. However, her concerns are misplaced because His Majesty is entitled to consider broader issues of public policy and the national interest in granting the pardon. The sovereign is not bound by the rules of evidence and the findings made by the courts against Anwar in previous cases when His Majesty is exercising the prerogative of mercy. If His Majesty concluded that Anwar was a victim of an egregious miscarriage of justice by the courts since his first arrest in 1998 and subsequent convictions, he was perfectly entitled to hold that view in good conscience and care. The courts and public opinion cannot substitute His Majesty’s discretion in the matter.

The Pardons Board that heard and determined Anwar’s petition for pardon was lawfully constituted. At that point in time, since the Cabinet had yet to be formed, the functions, duties and powers of the Cabinet and the individual ministers who form the cabinet were exercised collectively by Prime Minister Dr Mahathir Mohamad by virtue of an order of His Majesty made pursuant to Section 2 of the Ministerial Functions Act 1969 and gazetted by the chief secretary to the government. That is why the prime minister attended the meeting of the Pardons Board in his capacity as federal territories minister to advise His Majesty on Anwar’s petition for pardon.

The attorney-general was not present because he was on administrative leave. Section 40A of the Eleventh Schedule to the Constitution permits Solicitor-General Engku Nor Faizah Binti Engku Atek to exercise the functions, duties and powers of the attorney-general in his absence. This is also amplified in Sections 28 (2), 32 and 33 (2) of the Eleventh Schedule to the constitution. In fact, the solicitor-general acting as the attorney-general authorised the solicitor-general II at that time, Zaitun Zawiyah Binti Puteh, to attend the Pardons Board meeting as permitted under Article 42 (5) of the constitution to advise on Anwar’s petition. Therefore, there was no quorum failure in the Pardons Board as alleged by certain parties.

Another issue raised was the supposed dichotomy between a “full pardon” and a “free pardon”. In substance, there is no difference because the end result is the same. The constitution speaks of a pardon in Article 42 (1) and a free pardon in Article 48 (1) (e). In reality, the pardon or free pardon effectively erases the conviction and sentence of Anwar. Article 42 deals with the power of pardon while Article 48 touches on the disqualification for membership of Parliament. The granting of the pardon by the sovereign under Article 42 (1) means that Anwar is no longer disqualified from becoming a member of Parliament under Article 48 (1) (e) of the constitution. Consequently, there is no impediment left that prevents Anwar from contesting in the by-election.

As a result, Article 48 (3) of the constitution has no role to play. Article 48 (3) is only relevant where no pardon is granted in respect of the conviction and sentence or where the conviction stands but the sentence is reduced by His Majesty but it is not sufficient to overcome the disqualification in Article 48 (1) (e). In such circumstances, the affected person cannot contest in any election unless the impediment is removed by His Majesty under Article 48 (3). This is not applicable to Anwar’s case by reason of the complete pardon that he received from His Majesty under Article 42 (1) of the Constitution.

Therefore, Attorney-General Tommy Thomas, Election Commission chairman Azhar Harun and the eminent constitutional jurist and former Federal Court judge Gopal Sri Ram are correct in categorically stating that Anwar is entitled to contest in the Port Dickson by-election.

There has been much debate about the ethics or morality of a staged by-election for the sole purpose of electing Anwar to Parliament. Unfortunately, the link between ethics, morality, and politics is often very tenuous at best. While politicians should practise or aspire to such high values, idealism in politics must sometimes be tempered with pragmatism. Unforeseen or unusual circumstances peculiar to a given situation may compel the taking of extraordinary steps or actions to deal with such a contingency.

Even the greatest political figures of our past century like Churchill, Nehru and Mandela may not pass the test of scrutiny when measured against such high principles and idealism. It is peculiar that we are willing to give Mahathir the benefit of the doubt despite his past shortcomings and excesses but not Anwar despite his personal sacrifices (even if self-inflicted) and prolonged incarceration.

While we may disagree with some of his views, Anwar has been consistent in his reform agenda since 1998 as opposed to Mahathir’s recent conversion. If we could accept the PH consensus to make Mahathir the prime minister in the 14th general election, why are we disputing the same consensus to put Anwar in place after two to three years?

Anwar could not contest earlier due to his conviction. The by-election is necessary to ensure that there is no political uncertainty or vacuum before the transition takes place given Mahathir’s old age. It is not a question of entitlement or expediency as claimed by some but one of national interest and stability.

Gerard Lourdesamy is a lawyer and an FMT reader.

The views expressed are those of the author and do not necessarily reflect those of FMT.