KUALA LUMPUR (Sept 21): PKR president Datuk Seri Anwar Ibrahim failed in his bid to strike out an originating summons filed by lawyer Mohd Khairul Azam Abdul Aziz over the full pardon granted to him over his conviction and imprisonment for sodomising an aide.
High Court Judge Datuk Akhtar Tahir has also dismissed a similar application by the Pardons Board.
In dismissing the applications, Justice Akhtar ruled that the plaintiff (Mohd Khairul Azam) has locus standi in initiating the legal suit as he is a member of the public and qualified person, a lawyer, as well as there are triable issues that need to be heard in full.
He also held that the Yang di-Pertuan Agong had exercised executive power when granting the pardon to Anwar.
“If he exercised executive power, how can it (the matter) not be justiciable. It’s not a royal pardon. It’s an executive pardon because he is taking the role of the executive. So, if he is exercising executive power, then there are procedures and laws when you can question the executive power,” he said.
Justice Akhtar said this is not a clear cut case which can summarily be dismissed.
Touching on equality before the law, the judge said that if there are reasons to justify a pardon, then the reasons should be stated.
This, he said, is because people who are convicted on similar charges will feel they have been subjected to injustice or unfairness.
“This is a civil matter that must be proven on the balance of probabilities. I am dismissing both (striking out) applications with no order as to costs,” he said and fixed the trial for March 24 to 26 next year and Feb 18 for case management.
Lawyers Mohamed Haniff Khatri Abdulla and Datuk M Reza Hassan represented Mohd Khairul Azam while Anwar was represented by lawyer J Leela. Senior federal counsel Natra Idris appeared for the Pardons Board.
The Port Dickson Member of Parliament filed the application on May 13, among others, on the grounds 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.
Mohd 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 by the Yang di-Pertuan Agong, was in contravention of Articles 42(4) and (5) of the Federal Constitution, in view of the fact that pardons granted by the Agong should be based on the advice of the Pardons Board, which Mohd Khairul Azam argued had not yet been formally formed following the 14th General Election on May 9, 2018, and the formation of the new government.
Mohd Khairul Azam also claimed that following the election, several unconstitutional actions had been undertaken to ensure that Anwar received a pardon which released him from prison.
Anwar had been sentenced to five years' jail for sodomising his aide Mohd Saiful Bukhari Azlan, and the conviction and sentence was affirmed by the Federal Court on Feb 10, 2015.