The king’s pardon is non-justiciable

The legendary Eusoffe Abdoolcader called the case “the ineluctably protracted Sim Kie Chon saga”.

Sim Kie Chon was tried and convicted on a charge under section 57(1) of the now-repealed Internal Security Act, 1960 and sentenced to death by the High Court at Kuala Lumpur on June 14, 1983. His appeal to the Federal Court was dismissed on October 26, 1983. On his petition for clemency being referred to the Yang di-Pertuan Agong (the king) for consideration in accordance with the provisions of Article 42 of the Federal Constitution, the Pardons Board duly tendered its advice to the king and no pardon, reprieve or respite was granted. 

The sentence of death was confirmed and ordered to be carried out. An order to that effect was issued by the king on April 20, 1985. Pursuant to that also, a warrant was issued setting the date for execution as July 3, 1985.

A day before the execution date, Sim commenced an action by way of a writ of summons against the authorities, one of whom was the Pardons Board. In his statement of claim, Sim alleged that the Pardons Board had not considered his petition for clemency properly. He also alleged that by the failure to commute the sentence, the Pardons Board had acted unconstitutionally contrary to Article 8 of the Federal Constitution (equality before the law). 

Sim contended that the inequality lies in the fact that while the Pardons Board commuted the death sentence of Mokhtar Hashim it did not do the same in respect of him. The High Court judge before whom the action was brought - Harun Hashim - granted a stay of execution of the sentence on that very day of execution. It was later ordered to be dissolved and the statement of claim was also ordered to be struck out.

Both orders were made by the learned judge after hearing an application by the defendants, on a certification of urgency, on grounds that,

1. The matters raised in the said writ and the statement of claim were non-justiciable and/or outside the jurisdiction of the High Court;

2. The High Court had no jurisdiction to grant a stay of execution on a warrant of execution on a sentence of death issued against Sim;

3. The action was misconceived in that the death sentence pronounced by the High Court and confirmed by the Federal Court was final and conclusive and could not, in any event, be reversed.

An application for a stay of execution and an appeal against that decision of the learned judge were heard together and dismissed by the Supreme Court (as it was then called, now the Federal Court) on July 23, 1985. Delivering the judgment of the Supreme Court, Abdul Hamid, the then chief justice, said:

“It is the appellant’s contention that the inequality lies in the fact that while the board commuted the death sentence of Mokhtar Hashim it did not do the same in respect of the appellant. In our view, there is no merit in the contention for it is not the function of the board to commute a death sentence. Its function is merely to tender advice.”

“In the present case, though the Pardons Board tendered advice (to the king) but clearly (the king) himself exercised the power in accordance with Article 42 (1) (of the Federal Constitution). In our view, such power is a power of high prerogative of mercy which is an executive act but by its very nature is not an act susceptible or amenable to judicial review.”

In short, it was non-justiciable. Abdul Hamid affirmed this when he further said:

“In our judgment proceedings in court aimed at questioning the propriety or otherwise of such a decision are 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 king) 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.”

His Lordship agreed with Suffian (former lord president) in an earlier case of Public Prosecutor v Lim Hiang Seoh (1979) 2 MLJ 170 that when “considering whether to confirm, commute, remit or pardon, the king 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. (The courts) cannot confirm or vary them; (the courts) have no jurisdiction to do so.”

Following the Supreme Court decision, a fresh warrant of execution was issued setting the date of execution as Aug 15, 1985. Undaunted, Sim commenced another action on Aug 13, 1985 - two days before the execution date. His application for a stay of execution of the sentence was refused but the king, in the exercise of the powers of clemency, granted him a respite pending the final disposal of his present action.

Again, the defendants applied to set aside the action as an abuse of the process of the court. In a twist of events, Harun Hashim dismissed the application on Oct 17, 1985, but regrettably gave no reasons or grounds for his decision. It was, however, indicated by counsels appearing before the learned judge that he thought there were triable issues.

It was no wonder that when the appeal by the defendants against the decision of the learned judge was before the Supreme Court of three different judges, one of whom was Eusoffe Abdoolcader, the latter had the occasion to call the case "a saga". But it was supremely insightful of the Supreme Court judge that he saw the case as nothing more than "a case of new wine in an old bottle". His Lordship did not waste much time to say as follows:

“We must immediately state that the substratum of the case advanced for (Sim) rests on a twice compounded fallacy, scilicet, in seeking to implead what he purports to refer to as the decision of the Pardons Board and in doing so indirectly professing to impugn the decision and order of (the King) in the matter. The Pardons Board is only an advisory body and makes no decision whatsoever as such but only tenders advice to (the King) for the purpose of the exercise of his powers of clemency under Article 42 of the (Federal Constitution).”

In short, the Supreme Court viewed Sim’s second action as an attempt to circuitously challenge the exercise by the king of his powers of clemency under Article 42 of the Federal Constitution.

Delivering the judgment of the Supreme Court, Eusoffe Abdoolcader reiterated that the power of pardon or otherwise to mete out clemency is an executive power and in the Federal Constitution the royal prerogative of mercy is expressly preserved by Article 42 and is recognised by its inclusion in Chapter 3 of Part IV of the constitution as an executive power. 

When the constitution has empowered the nation's highest executive as the repository of clemency power, the courts cannot intervene and judicial review is excluded by implication.

The king’s pardon is non-justiciable.

by: Hafiz Hassan, - Mkini