Anwar Ibrahim is Ineligible to Stand

A BACKGROUND TO THE ROYAL PARDON

The Royal Prerogative of Mercy from which the Royal Pardon is derived is an expression of a general principle in English law that justice should also factor into its decisions the virtue of compassion.

The Prerogative has its genesis in the middle ages in England, where the King had the power and discretion to commute death sentences into a lesser  punishment, if in his discretion he felt the punishment too harsh or not befitting the crime. Transportation to Australia or other far away colonies instead of hanging for instance was one such discretionary lesser sentence amounting to a pardon.

In more recent times in the UK as the death penalty is redundant there, a pardon can still be granted in reduction of a sentence imposed on a convicted criminal, including reducing it altogether for compassionate reasons.

MAHATHIR’S CONSCIENCE AND ADMISSION COMPLICATES MATTERS

In this case involving Anwar Ibrahim, Mahathir’s admission that “Anwar is innocent” (ostensibly meaning innocent of the charges Dr. Mahathir himself proffered against Anwar decades ago) is all we have to go by in support of the Royal Pardon given to Anwar by the Agong.

A pardon might also be given if new information is discovered that proves beyond any doubt that a convicted person (Anwar in this case) is innocent of the crime, or that there has been a miscarriage of justice (Lindy Chamberlain- “the Dingo’s got my baby”-Australia).

Once more we have only Dr. Mahathir’s ‘tainted and unreliable’ confession to rely on that Anwar is innocent.  So who do we believe and how reliable is Dr. Mahathir’s word if it is to be without consequence to him?

WHAT A PARDON DOES AND WHAT IT DOES NOT

Back to what a pardon does and does not do:

A Royal Pardon does not quash the prisoner’s conviction, only a court can do that. Till then the convicted person is considered to be guilty of the offence they committed, just free of the penalties. The pardon does not quash the conviction, only a court can do that.

A pardon is, however, a lot faster and easier to arrange than holding a re-trial or appeal. It might therefore be preferred in some situations. (In ancient times there were no appeal courts, so the Royal Prerogative of mercy was much more widely used.)

WHO CAN PARDON A CONVICT LIKE ANWAR AND HOW

Like other royal prerogative powers, a pardon is issued “by the Agong (in Malaysia) on the advice of his ministers” ( as it is the case with the Queen in the UK)”.

In practice, that means that in the UK and in Malaysia it is the Justice Secretary or Attorney General (in Malaysia) respectively who issues the pardon. The Agong still personally signs the paperwork once it is placed before him all other formalities having been satisfied first.

Pardons are subject to judicial review, like other actions of the executive. The courts retain their powers and independence.

THE AGONG AND THE COURTS ARE TWO SEPARATE ENTITIES- DIFFERENT POWERS

The power of the Agong to issue royal pardons of his own volition and without the concurrence and advise of his ministers is both unconstitutional and invalid.

The Agong cannot interfere with the justice system. Only the courts have the power to quash, vacate or expunge the conviction on a proper application by the convict, in this instance Anwar. The Agong is not empowered to play that role.

ANWAR IS DISQUALIFIED FROM SEEKING ELECTION OR SITTING IN PARLIAMENT

Anwar therefore, although having been pardoned by the Agong still carries the stain of  his conviction. It has not been removed or vacated or expunged. If it has, the the reasons proffered by a number of lawyers in this regard fails to cite the authority by which the Agong has acquired the power to expunge Anwar’s conviction in the absence of a clear and unequivocal constitutional provision empowering him to do so.

In these circumstances it is therefore clear that under article 48 ( e ) of the Federal Constitution, Anwar is and remains ineligible to stand for election to parliament. His election to office if he does succeed in getting elected in the seat of Port Dickson will be at the very least void.

At worst under the current administration any challenge to legality of Anwar’s enrollment as a candidate for the constituency of Port Dickson will be ignored as all other complaints about irregularities observed during the last general elections have been ignored and not investigated by the PH government.

 

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