KUALA LUMPUR: Parti Keadilan Rakyat (PKR) president Anwar Ibrahim has failed in his bid to strike out a legal challenge to the pardon for his 2014 sodomy conviction.
Malaysia's High Court on Monday (Sep 21) dismissed Anwar's application to strike out an originating summons filed by lawyer Mohd Khairul Azam Abdul Aziz over the full pardon for his conviction and imprisonment for sodomising an aide.
High Court Judge Akhtar Tahir also dismissed a similar application by the Pardons Board.
Anwar had been sentenced to five years' jail for sodomising his aide, Mohd Saiful Bukhari Azlan. His conviction and sentence were affirmed by Malaysia's Federal Court on Feb 10, 2015.
The member of parliament for Port Dickson was freed from prison on May 16, 2018, after receiving a pardon from Malaysia's king.
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Khairul Azam, through the legal firm Raja Riza & Associates, named the Pardons Board and Anwar as the first and second defendants respectively in his summons filed on Feb 26 this year.
The lawyer claimed that the pardon granted to Anwar contravened Malaysia's Federal Constitution, as pardons granted by the king should be based on the advice of the Pardons Board.
He argued that the Pardons Board had not yet been formed then, following Malaysia's 14th general election on May 9, 2018.
Khairul Azam also claimed that following the election, several unconstitutional actions had been undertaken to ensure that Anwar received a pardon releasing him from prison.
On May 13, Anwar filed an application arguing that Khairul Azam had no locus standi to file the originating summons and that it was frivolous, an embarrassment and abuse of the court process.
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"NOT A ROYAL PARDON"
In dismissing the applications, Justice Akhtar ruled that the plaintiff, Khairul Azam, had locus standi to initiate the legal suit as he is a member of the public and a qualified person. The judge also ruled that there were triable issues that needed to be heard in full.
Justice Akhtar also held that the king had exercised executive power when granting the pardon to Anwar.
"If he exercised executive power, how can it not be justiciable? It's not a royal pardon. It's an executive pardon because he is taking the role of the executive," the judge said.
"So, if he is exercising executive power, then there are procedures and laws when you can question the executive power," he added.
Justice Akhtar said this was not a clear-cut case that could be summarily dismissed.
Touching on equality before the law, the judge said that if there were reasons to justify a pardon, then the reasons should be stated. This was because people who were convicted on similar charges would feel they had been subjected to injustice or unfairness.
"This is a civil matter that must be proven on the balance of probabilities. I am dismissing both applications with no order as to costs," Justice Akhtar said.
The trial has been fixed for Mar 24 to Mar 26 next year, with Feb 18 for case management.
Lawyers Mohamed Haniff Khatri Abdulla and M Reza Hassan represented Mohd Khairul Azam. Anwar was represented by lawyer J Leela. Senior federal counsel Natra Idris appeared for the Pardons Board.