What The Rejection Of Anwar Ibrahim’s Petition For Pardon Tells Us About Malaysia’s
Royal Pardons System
Daniel Pascoe
Assistant Professor
School of Law, City University Hong Kong
Date: 14 October 2015
Time: 1:00 pm – 2:00 pm
Venue: Room 723, 7/F, The Cheng Yu Tung Tower
The moderator of this seminar was Simon Young, Professor and Associate Dean
(Research), Faculty of Law.
Dr. Pascoe introduced and analysed Anwar Ibrahim’s case in relation to the Malaysian
Royal Pardons System, which was the subject of his doctoral thesis at Oxford University.
This system of pardons is an interesting system to study as it operates in a
divergent manner to other systems like in the United Kingdom, the Republic of Ireland,
Iran, and etcetera. Hong Kong does not have a system of pardons as such therefore it is
thought provoking to reflect on various different systems. Under Article 48 of the Basic
Law, petitions can be made to the Chief Executive, and it is only the Chief Executive of
the Legislative Council that can decide to pardon offences or commute a penalty.
However, prior to Hong Kong’s handover to the People’s Republic of China, pardons
were based on the royal prerogative.
Anwar Ibrahim, the former deputy prime minister of Malaysia, recently had his
petition for pardon rejected by the Yang di-Pertuan Agong (the Malaysian king) in March
of 2015. Dr. Pascoe examined the Malaysian system of royal pardons in relation to
Anwar Ibrahim’s case because this rejection has sparked much controversy both locally
and internationally. Dr. Pascoe’s earlier research on the Malaysian system of pardons,
which he obtained for his doctoral thesis, was based on observations and findings from
archival and ‘elite’ based interviews in 2011 and 2012. This enabled him to form three
hypotheses as to why the Yang di-Pertuan Agong rejected Anwar’s petition for pardon in
March this year.
“Elite-based” interviews were especially important because they provided a great
deal of insight into what occurs in closed-door meetings and provided some information
that official documents chose not to disclose.
Dr. Pascoe hypothesised that Anwar Ibrahim’s petition rejection stems from the
following three reasons;
1. The previous history of Malaysian Royal Pardon grants
2. Overt political influence on Pardons Board decision-making
3. The historical role of Malay Monarchy
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Background to Anwar Ibrahim’s Case
Anwar Ibrahim served as Malaysia’s Finance Minister from 1991 to 1998 and also
concurrently held the position of Malaysia’s Deputy Prime Minister from 1993 to 1998.
A parliament member of the United Malay National Organisation (UMNO), 1 he was
presumed to be Mahathir Mohamad’s eventual successor.
However in 1998, following a political split from Mahathir Mohamad who was
then the prime minister, Anwar Ibrahim was removed from his post. The reason for this
political split was a “bitter power struggle over calls for reform and an end to cronyism”.2
Anwar Ibrahim was also charged and convicted of abuse of his ministerial office and of
sodomy with his family’s driver. This was a criminal offence because section 337 of the
penal code prohibits sodomy (heterosexual and homosexual). His charges and
convictions were denounced internationally as they were said to be a result of political
interference in the criminal justice system. Many presumed that the charges and
convictions were an attempt to end Anwar Ibrahim’s political career. He was sentenced to
fifteen years in prison.
He was released after having served all six years of his corruption charges in
2004. This was the same year that the Malaysian federal court, the highest appeal court in
Malaysia chose to overturn his sodomy conviction. While imprisoned, Anwar Ibrahim’s
wife Dr. Wan Azizah Wan Ismail founded a new political party in 1999 called Parti
Keadilan Rakyat (also known as the People’s Justice Party), which is now the leading
opposition party in Malaysia. Anwar Ibrahim returned to parliament in 2008 to head the
People’s Justice Party. In 2008, he was convicted of sodomy with an aide again. Many
said that this too was a result of political inference in the judicial system. Anwar Ibrahim
was then tried but acquitted in 2012 by the federal court in time to contest for the general
elections in January 2013. He lost the closely run election.
In March 2014, the court of appeal overturned Anwar Ibrahim’s acquittal; the
latter sentenced him to five years in prison. Anwar Ibrahim’s final judicial appeal to the
Malaysia Federal Court affirmed the court of appeal’s decision in Februarys 2015.
However, he has filed a couple of judicial reviews since then. As a consequence of this
conviction, he is banned from politics again and this time for a period of ten years. He
will be imprisoned for five years but he will also not be able to participate in the political
sphere five years after his release.
1
The UMNO is the largest political party in Malaysia and the party from which the prime
minister has always been elected since the country’s independence. Najib Razak,
Malaysia’s current prime minister also belongs to this party.
2 ABC News. Anwar Ibrahim: a timeline of political turmoil. 10th February 2015.
http://www.abc.net.au/news/2015-02-10/anwar-ibrahim/6083644 (accessed November
2nd , 2015).
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Anwar Ibrahim has been incarcerated in a prison in Sungai Buloh Selangor, which sits on
the outskirts of Kuala Lumpur. Additionally, reports have been made indicating that his
health is deteriorating. His wife however, remains politically active and she just won the
bi-election for her husband’s former seat in Penang.
His supporters from the People’s Justice Party together with his family submitted
a petition for a royal pardon. This petition was submitted in February 2015 but was
rejected in March 2015. The result of Anwar’s petition was not suprising to those who
follow Malaysian politics. Despite the international community’s skepticism of these
convictions, the federal court’s Chief Justice, Zakaria, indicated that the court had
“overwhelming evidence” to convict him with sodomy charges.3
The Human Rights Watch stated that the decision was politically driven and the
decision caused much conflict between the Anwar Ibrahim’s supporters and the police.4
Furthermore, the verdict means that that Anwar Ibrahim will remain in prison until he is
of seventy-two years of age. His ban from politics deprives him of his parliamentary seat
and does not allow him to run for the 2018 election.5
Malaysian system of Royal Pardons
In Malaysia, the royal petrogative to grant pardon can result in the following;



A reduced death sentence to something less than death
A reduced prison term
The release of the petitioning individual altogether
This reduction or commutation can occur in the following manner. First, an individual
can submit a petition to the relevant state or pardons board. This board then advises the
political leader on the issue but it is ultimately up to the leader to exercise their
discretion. Second, all death sentences are automatically considered for pardon by the
board. Third, each prisoner serving a long-term prison sentence is automatically
considered for release every four years.
The intrinsic composition of the pardons board is also important. The board
comprises of Malaysia’s federal attorney general or the delegate attorney general, the
relevant state chief ministers and up to 3 appointed ‘eminent’ members of the public
(these laymen have no legal background and there to provide a more balanced view or
interpretation).
3
AFP. Malaysia's Anwar Ibrahim sodomy conviction upheld as he faces five-year jail
term. 10th February 2015.
http://www.telegraph.co.uk/news/worldnews/asia/malaysia/11402153/Malaysias-AnwarIbrahim-sodomy-conviction-upheld-as-he-faces-five-year-jail-term.html (accessed
November 2nd, 2015).
4
Ibid.
5
Ibid.
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Altogether there are sixteen different pardons boards (both state and federal pardon
boards). These boards make recommendations to the Malay hereditary rulers of the nine
states, the four appointed states governors (the states that do not have a ruler) and to the
Yang di-Pertuan Agong. On a side note, the Yang di-Pertuan Agong’s independence
should be considered. His independence over pardon decision-making in federal,
military and security cases has and continues to be the subject of numerous academic and
political work. The role of the Yang di-Pertuan Agong was a result of the 1957
constitution and he holds immense power within this constitution. The role rotates
between the nine hereditary rulers of Malaysia.
The board can make recommendations concerning federal, military and security
spheres however the herediatry rules, state governors and the Yang di-Pertuan Agong are
not obliged to the follow the board’s recommendation. However, they have been known
to follow through on the board’s recommendation in the majority of cases. This usually
occurs when prominent individuals reside over the meetings as chairman of the pardons
board. Furthermore, the materials for each board have a certain degree of influence over
the outcome of the decision.
These materials include;
 The prisoner’s petition (this outlines why the pardon should be granted)
 Reports from the police, the narcotics board, psychologists (from the prison’s
department)
 Recent reports from the Malaysian federal attorney general
 For in-depth cases, there is a judicial requirement where the evidence from the
trials, the recommendations and the documents from the appeal judges are
necessitated
Dr. Pascoe’s Hypotheses and Explanation
In his paper, Dr. Pascoe argued that due to a number of systemic features of the
Malaysian royal pardon process, the Yang di-Pertuan Agong’s rejection of the petition
was no surprise.
Dr. Pascoe believes that although substantial literature already exists on the
subject areas such as the powers and procedures of the Malaysian pardon bills as well as
on the various states and federal rulers that exercise the power to pardon, there is a gap in
the literature. He suggests that studies tend to look at the pardon system from a
predominatly doctrinal or textual perspective. He deems that the existing literature does
not but should study the Malaysian pardons system in the context of larger studies or
topics such as the mandatory death penalty for drugs and firearms as well as the power of
imunity given to Malay monarchy.
His research attempts to expand the current literature by drawing three
conclusions on the Malaysian royal pardons system.
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Methodology
He conducted qualitative empirical research rather than solely basing his hypotheses on
doctrinal analysis. Attempting to systematically garner empirical data, he gathered
information on the whole population that benefited from pardons in Malaysia’s recent
history. He further conducted ‘elite-based’ interviews with lawyers, judges, politicians
and NGO staff in Kuala Lumpur in order to understand the way in which pardon
decisions had been made.
It would be difficult to monitor what occurs in the pardons board meetings and he
assumed that it was not possible to observe board proceedings first hand nor see the
proceeding records in Anwar’s case or in other cases.
Hypotheses and Explanations
Hypothesis 1: The previous history of Malaysian Royal Pardon grants
Over the past four decades, none of the relevant decision makers have issued pardon on
the grounds of factual innocence. However, that was the basis of Anwar Ibrahim and his
family’s petition before the federal pardons board. They argued that he was wrongfully
implicated.
There is no evidence to suggest that cases argued on the basis of possible factual
innocence have been successful since 1975. This historical context provides some
indication of the outcome such cases, even though grants and board recommendations are
not subject to the doctrine of judicial precedent.
The reason why royal pardon is granted or rejected is not often made public but it
is possible to speculate and narrow down on the range of factors that influence decisionmaking. These factors can be found from empirical research such as media reports,
secondary literature, and interviews. Additionally scholars, commenters and journalists
have generally seen non-legal factors as having the greatest influence over decisions
made by the board and Malay monarchy.
The types of non-legal factors include;
 A foreign prisoner’s country of origin (to maintain good relations with other
states)
 Previous public service of the prisoner
 The political connections of the prisoner
 Retributive justifications (these have been decisive in some cases):
 Prisoner’s age, especially if they are underage
 A case in which complete or partial defense was argued but did not
succeed in court
 Procedural irregularities
 Pressing criteria that has emerged during commutation
 Rehabilitation reports (this is of chief importance for the board because of the
absence of a separate body. The pardons board also acts as a parole board because
this does not exist in Malaysia.)
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Importance of Rehabilitation Reports for the Malaysian pardons board
A number of prisoners in lower profile and unrecorded cases have been awarded absolute
pardon or have had their sentence commuted. Their sentences were commuted under the
condition that they demonstrated remorse, repented and apologised. As mentioned earlier,
prisoners serving long-term sentences are automatically considered for pardon every four
years. Each prisoner also has the right to petition the decision-maker for pardon every
two years. This means that prisoners serving life or natural life sentences have a higher
likelihood of satisfying the criteria for royal pardon. Due to the longer period of their
sentences, they have more chances to petition for pardon.
However, it must be noted that if an individual submits a petition himself, then he
is essentially implicating himself. This is the main reason why Anwar Ibrahim did not
submit the petition himself; instead his family submitted it on his behalf (under Article 42
of the Malaysian Federal Constitution). His family argued for pardon on the basis of
wrongful conviction and factual innocence rather than on the basis of mitigating
circumstances because they alleged that the evidence had been fabricated, therefore he
should be exonerated.
Dr. Pascoe stressed that Anwar Ibrahim’s case exhibits one of the key mitigating
factors that could have been considered by the pardons board. Anwar Ibrahim, prior to his
conviction had been a long-term serving politician. No one knows if this was discussed in
the relevant party board meetings. In the past, pardons have been awarded to politicians.
However in the previous cases, unlike in Anwar Ibrahim’s case, the current members of
the ruling party rather than the former members were involved in the decision-making
process. The only exception to this established trend is Lim Kit Siang’s case. Lim Kit
Siang was awarded pardon in 1969 after which he was allowed to retain his position in
parliament. He is still associated with the Democratic Action Party (DAP), another
opposition party.
Yang di-Pertuan Agong (Malaysian king) rejected Anwar’s petition for pardon
and found that no requisite mitigating circumstance could be found. Dr. Pascoe stated the
Malaysian pardons board has never considered the notion of factual innocence.
Hypothesis 2: Overt political influence on Pardons Board decision-making
The rejection of Anwar’s pardon was due to the overt political influence of the pardons
board and the materials it considered. The pardons board is supposed to, by description,
provide politically impartial advice. The federal government has no say in whether the
pardon should be granted or rejected. However, the composition of political
representation on the pardons board suggests that decisions are politically motivated. The
federal attorney general, local chief ministers and the ‘politically sympathetic’ lay
members are in a position to give recommendations that suit the elected governance. The
final decision maker, who is either the Yang di-pertuan Agong (king), governor or sultan
can choose whether or not to act upon these recommendations. However, Dr. Pascoe said
that this can be deemed irrelevant as it does not influence nor overshadow the fact that
the federal attorney general, local chief ministers and the lay members set the
recommendations. Additionally, it is possible for these entities to make negatives
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recommendations, if they came to a consensus. This would increase the likelihood of
certain petitions being rejected. In relation to Anwar Ibrahim’s case, it is suspected both
within and outside Malaysia that the leadership intended to wrongfully convict him in
order to incriminate him. This however, cannot be proved in the absence of first hand
testimony.
Furthermore, the role of the attorney general is important in Anwar Ibrahim’s
case. The attorney general’s report is the first report that is considered in the meeting.
This is significant because the attorney general authors his own report and presents it to
the board. Other individuals may write reports but these authors are not present in the
meeting. Unlike other parties that submit documents to the pardons board, this means that
the attorney general can defend his position before the court because he is physically
present in those meetings. Moreover, according to three interviews that Dr. Pascoe
conducted, the federal attorney general’s recent oral submissions have had the greatest
influence on the final decision.
There are two key reasons why the attorney federal general’s written and oral
submissions have likely been negative in this case. The positions of federal attorney
general and Malaysia’s chief prosecutor are being concurrently held by the same
individual. This affects the ‘impartial’ nature of the recommendations and advice. Even
though the federal attorney general’s historical lack of independence from Malaysia’s
elected government is evident, Dr. Pascoe questions whether or not these two roles are
distinctly separate given the circumstances. Why would the federal attorney general
recommend pardon when the state has already put significant amount of resources into
the prosecution of the case?
The appointment and dismissal of the attorney general is made through direct
ministerial recommendation. This means that the nominated individual for the position of
the attorney federal general will have the support of the elected government. In this case,
Dr. Pascoe indicated that the impartiality attorney general is questionable. As mentioned,
current members are usually involved in the decision-making but the current federal
attorney general sat on the previous pardons board. It has been reported that Abdul Gani
Patail, the attorney general has a “long standing animosity towards [Anwar Ibrahim]”. 6
Abdul Gani Patail was appointed to the position of attorney general in 2002 and has
served until recently as he was suggested to step down from his post,7 under Clause (5) of
Article 145 of the constitution. 8 He was also the state prosecutor during his Anwar
Ibrahim’s original sodomy and corruption trials.
6
Ho Kit Yen. Anwar seeks judicial review of Pardons Board rejection. 24th June 2015.
http://www.freemalaysiatoday.com/category/nation/2015/06/24/anwar-seeks-judicialreview-of-pardons-board-rejection/ (accessed November 2nd, 2015).
7
Yiswaree Palansamy. Gani says in the dark over sudden termination. 28th July 2015.
http://www.themalaymailonline.com/malaysia/article/gani-says-in-the-dark-over-suddentermination (accessed November 2nd , 2015).
8 The Malaysian Insider . Gani’s removal was constitutional, says new A-G. 29th July
2015. http://www.themalaysianinsider.com/malaysia/article/ganis-removal-wasconstitutional-says-new-a-g (accessed November 2nd , 2015).
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Dr. Pascoe hypothesised that, once a decision had been made to convict Anwar
Ibrahim for a second time then that was the decision of the attorney general. Additionally,
the decision to reject pardon would have also been his. Due to the attorney general’s
dominating role, all that he was required of him was to convince the other members on
the board including the state chief ministers and the three lay members. The evidence
from previous cases suggests that all the members tend to follow the advice of the federal
attorney general.
Hypothesis 3: The Historical Role of Malay Monarchy
This hypothesis is concerned with both the style and nature of the decision-making on the
pardons board in the federal jurisdiction of Malaysia. The drafting of the Malaysian
constitutional power to grant pardons was significantly influenced by the royal
prerogative of mercy as in the United Kingdom. It is also worth noting that the hereditary
rulers or state sultans have been exercising their judicial power to pardon well before the
British colonial era began. Talib Azlan Shah, a former chief justice and head of Perak
(from 1994 until his death in 2014), suggested that the Malay sultans exercised clemency
or pardon in order to depict themselves as absolute monarchs. 9 This was a manner to
demonstrate power over their subjects.
More recently, pardons have been issued on a sultan’s birthday and on the first
day of Ramadan. It is unclear whether such festivity is the reason for granting pardon or
if they reflect the timing of the grant. Additionally, Dr. Pascoe’s interview sources have
suggested that a number of modern state rulers such as the rulers of Johor, Selangor and
Perak have demonstrated their independent discretion over constitutional matters of the
prerogative. An example of this occurred one week ago; with Malaysia’s ongoing
leadership crisis, all nine state sultans issued a joint-statement that urged for an
investigation of the scandal where they advocated for stern action against all those
implicated. This indicates that the state sultans are not reluctant to intervene for political
means.
Interview and archival sources have further supported this point because the
pardons board’s dynamics differ depending on whether the board is chaired by hereditary
ruler because these rulers have had a history of pardoning. The dynamics change if the
board is chaired by one of the appointed Yang di-Pertua Negeri (state governors) or the
Yang di-Pertuan Agong. The four Yang di-Pertua Negeri (state governors) are appointed
and therefore have a reduced degree of autonomy on matters of the royal prerogative.
Nancy Shukri, a Malaysian politician and minister, relayed the conventional view
that the final decision lies with the Yang di-Pertuan Agong rather than with the attorney
general and the board. She said “the decision is exclusively his” and “will not see it as his
function to take a different view from that advised. He’s the head of state, not a political
leader”.
The fact that Anwar Ibrahim’s petition for pardon was rejected a month after it
was submitted illustrates that the Yang di-pertuan Agong interpreted his constitutional
9
A sultan during the Malacca period held undivided power, he could wage war, make
decision on issues of life and death as well as administer law and order.
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role as to follow a presumably negative recommendation from the political executive on
the board. If Anwar had been convicted by one of the nine sultans rather than a governor,
the chances of being granted pardon would have been higher. This assumes that the
sultans would have been more sympathetic towards Anwar Ibrahim’s case than the
federal attorney general or the Yang di-pertuan Agong but this only an assumption. Most
cases especially if a sultan resides on the pardons board, will wait around fifteen to
twenty-five years to grant pardon. Most prisoners have served their prison terms before
their petition is considered. This occurs despite the fact that the sultans receive reports on
the progress and rehabilitation of prisoners every four years. Furthermore, no legal time
has been delineated in which the Yang di-pertuan Agong, the yang di-pertua Negeris
(state governors) or sultans need to call a board meeting. There is also no legal time in
which they must make their final decision, as this has to do with their royal prerogative.
Anwar Ibrahim’s petition was submitted in February 2015 only to be rejected in March
2015, suggesting that there is a great deal of political control involved in the pardoning
process. The Yang di-pertuan Agong was either keen to pardon him, or was acting on a
negative recommendation made by the political executive to reject the petition as soon as
possible. The latter seems to be the case and he followed this recommendation in his
constitutional role.
In conclusion, these three hypotheses apply not only to Anwar Ibrahim’s case but
to all sixteen federal and state pardons boards. However, empirical testing of any one of
the three hypotheses would be extremely difficult. Unlike the proceedings of the
Malaysian courts, the proceedings of pardons boards are not open to the public and
therefore no first-hand observations can be made. The absence of any empirical data on
the recommendations that the boards make, means that it is not possible to know if the
outcome is a result of an agreement between the chair and the board, or if the chairman
(the Yang di-pertuan Agong, Yang di-pertua Negeri or sultans) has taken the royal
prerogative into their own hands. Dr. Pacoe’s three hypotheses on Anwar Ibrahim’s case
were reached on the best possible evidence available to him.
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QUESTION & ANSWER SESSION
Moderator: One question that I had was, you mentioned that there are some on-going
judicial reviews, are they judicial reviews of the court’s decision or the judicial
reviews….?
Dr.Pascoe: I think Anwar has sixteen legal avenues that he is pursuing, but I think that it
is both. He has launched a judicial review in relation to the rejection of his petition and
on the basis that the former federal attonery general Patail has this alleged long standing
animosity towards him, implying that he was not impartial at the time he gave his advice.
That is the judicial review of the pardons board. He has also launched the judicial review
of the federal court’s decision that rejected his appeal. He has launched those two, in
addition to other illegal cases.
Moderator: How transparent is the judicial review in stating the reasons?
Dr Pascoe: The reasons for the pardons board? It is not, and this is the point. Previous
Malaysian cases have established that because it is matter of the royal prerogative you do
not need to issue reasons and the process is kept secret. Thus the royal pardon system is
not subject to judicial review.
Question: How powerful is the monarch or sultan? What other powers they do they have
apart from their decision-making role? Another related question is that, given the
political crisis is there a sign that they are bribing the state in order to achieve more
power? There are three of them; they can form powerful political groups.
Dr Pascoe: They have this institution in Malaysia called the Council of Rulers10 and all
nine state sultans sit on this council. I guess that it can be perceived as a threat by the
political executive. There have been a couple of previous constitutional crises in
Malaysia, in which the sultans have exercised power that they believe; they have the
discretion to exercise under the constitution. However, they exercise it against the advice
of the elected government. This led to changes in the Malaysian constitution for example
in 1992 and 1999.11 The constitution now stipulates that power should only be exercised,
when the ruler is acting on given advice.
This indicates that individuals feared of the sultans’ rival power, where the
constitutional change constrains the Malay sultans. The other point is that the prerogative
power of the rulers depends on the state they come from. The four appointed state
governors do not have much independent power in the elected government. To see this,
we only need to look at the statements made a week ago that assert that prime minister
should step up, this can be seen as an encroachment on party politics.
10
The Council of Rulers was established by the Malaysian Constitution and elects the
Yang di-pertuan Agong.
11 Articles 39-42 were amended
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Question: Have any reforms been proposed relating to the power of the federal attorney
general? It seems as though from your presentation that the federal attorney general
holds a great deal of power.
Dr. Pascoe: There is a problem with that. Remember that the federal attorney general is
also the prosecutor. Malaysia is not the only jurisdiction where you would get the
prosecutor advising on pardon, Singapore does the same. Anytime you get a prosecutor
advising on whether or not to issue the pardon then they are unlikely to say ‘yes’ because
they will think that they put so much effort into convicting an individual, why should
they let the prisoner off now (by either reducing the sentence or releasing the prisoner
altogether). I guess one way to reform it would be to separate the institutions of
prosecution with the advice role on the pardons board. The second problem is that the
federal attorney general was meant to be the state’s legal advisor but is meant to be
formerly independent from the political executive. I am not sure if legal reforms are
necessary for that, historically there have been some allegations that the federal attorney
general just helps with the bidding for the elected government. If you can separate the
federal attorney general from the political executive, the more likely you are to get
impartial advice (in the interest of justice not party politics). I am not sure how to do that
but that is the key crux.
Response: Is there any reason why this has not been done yet?
Dr. Pascoe: Malaysia has a particularly strong executive and I guess they are still
developing their democracy.
Moderator: I just want to comment on that and reflect on how this occurs in Hong Kong.
You petition to the Chief Executive of the Legislative Council for pardon. There is a
functional separation with regards to the Secretary of Justice, where the Secretary of
Justice acts as the legal advisor and handles the prosecution.
Dr. Pascoe: Is that strongly independent to party politics?
Moderator: Yes and no, the Secretary of Justice wears two hats like in the judicial
common law manner. Functionally there is a separation when it comes to the
prosecution’s decisions, this would mean allude to the lack of party politics. However,
when the Chief Executive receives one of these petitions, he would ask the solicitorgeneral to advise him and the solicitor-general can sit on the same level as the director of
prosecution. So there is a function of separation, just as when you said that the two
positions were held concurrently in Malaysia. In fact in Hong Kong, it is the same for the
Secretary of Justice, but functionally it is different because of the divergent divisions
within the department. Does this happen in Malaysia?
Dr. Pascoe: The federal attorney general does sometimes have a delegate on the pardons
board, where the federal attorney general is supposed to give advice on the pardons case
but it is the delegate’s responsibility to give advice to the solicitor-general. This is the
role of the prosecutorial office. Certainly in Anwar’s case, the federal attorney was the
same individual who had prosecuted him in court and was also the individual who gave
advice and sat on pardons. But, in public state cases in Malaysia, it may be a delegate.
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Question: I was intrigued by the aspects of your first hypothesis, such as the fact that
factual innocence has never been a cause for pardon and therefore there is no such thing
as a wrongful conviction. The submission of pardon means that the individual concerned
is implicitly admitting guilt. I wonder if the system has been set up this way to force the
applicants to fail because there is no way to say that ‘I was wrongly convicted’. If you
need to submit a petition yourself and you do not have a family to submit a petition on
your half, you are saying ‘yes I am guilty’. It is like pleading the fifth, where you are
implicating yourself. If you were to petition for pardon, how would you do this?
Dr.Pascoe: Good question. This is something that Anwar wrestled with and eventually
asked his family to apply for it. Initially, in his first set of sodomy trials in 1998 when he
was convicted, he did not want to apply for pardon either. We were really just talking
about his second set of charges but for his first set of charges, his political supporters
applied for him on his behalf because they knew that he would be admitting guilt if
Anwar had applied himself. The first solution is to get someone to apply on your behalf.
Factual innocence can be seen as only one of the potential grounds to apply for pardon
and as I have said it has not been successful in Malaysia. However, more pardons have
been issued in Malaysia than in Singapore.
Non-legal factors such as your previous political service, political connections or
retributive justice could grant an individual pardon. I guess you could say that it is a
miscarriage of justice. If you argued for self-defence, procedural irregularities, duress or
intoxication but you have not been able to satisfy the requirements, then you can argue
that there is some evidence of defence in your petition but in this case you will still be
admitting to the act. You can also use the rehabilitation argument, where you can say that
you are serving a natural life sentence but argue that you have changed. You have these
other options. However, if your sole argument is that you did not commit the crime, then
you are best off asking someone else to file a petition on your behalf.
Question: Does Malaysia have a mechanism for ministerial reference? This where the
ministry can refer the case back to the courts even after all appeal rights have been
exhausted. It is used when you have exhausted all your pure rights but you have new
evidence to prove that you are innocent. The ministry can then take the case back to the
courts (Hong Kong).
Dr. Pascoe: This is the judicial review in Malaysia. I do not think that Malaysia has this
mechanism and there is a problem with this. It would need to start in the political office
rather than in an independent office. The fact that it would need to start in the political
office would not help someone like Anwar who is not popular (in the political sense).
Response: I was just thinking that if you had the separate mechanism, issues about
innocence and guilt would have a different track, as pardons are presupposed and
formal. Perhaps something that is similar to criminal cases in the United Kingdom,
where the secretary or ministry of justice can give you one last chance.
Dr. Pascoe: That is one of the lessons from Anwar’s case; you need a separate body or
mechanism to consider factual innocence because in Malaysia asking for pardon is
perceived as begging the ruler for your life or freedom. This also suggests that you have
repented for your crimes. So yes, there needs to be a separate mechanism.
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© CCPL, HKU
Written by Zahra Kamaruddin
Question: How does this then impact criminal records, is there a possibility for criminal
records to be expunged or sealed in cases where you are granted pardon?
Dr. Pascoe: Yes. The pardon’s board has the discretion to do that. The pardons board can
release you from prison and can also rehabilitate your record. Anwar is banned from
politics for five years (five years in prison and then for the five years after he is released)
and if, he were to receive pardon from the federal pardons board, I think that it would be
up to the discretion of the ruler but I am not sure. The ruler can grant an absolute pardon
or remove the punishment but keep the conviction.
Response: But is there a possibility that it can be expunged totally?
Dr.Pascoe: Yes, I think they have that discretion but I am not sure.
Question: How are the three lay members on the pardons board selected? Are they the
same individuals all the time? Do they rotate and do they have term limits?
Dr.Pascoe: These members are appointed under the Malaysian constitution and by the
federal attorney general. The original purpose behind this provision in the constitution
was to keep a racial balance on the pardons board. So you were supposed to have one
Malay member, one Chinese member and one Indian member. I am not sure if this
happens in practice but this was the original purpose. I have not done a study looking into
all the lay members and in fact their identities appear to be kept secret in order to avoid
certain consequences that their services on the pardons board might have. What you do
have however, are individuals who have retired from public life or people who are going
to pass away. Their services on the pardons board will be included in their obituaries so
you tend to see that the lay members were senior individuals at the time they were
appointed so they could be former businessmen, etcetera. I suspect that the appointment
process makes it more likely that the lay members feel more sympathetic towards the
petitioners.
Moderator: Thank you very much for the engaging and interesting seminar. I wish you
all the best.
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© CCPL, HKU
Written by Zahra Kamaruddin