1. A CONSTITUTIONAL CHALLENGE OF UNPRECEDENTED GRAVITY

A man has sued the Prime Minister of Malaysia. ¹Waytha Moorthy Ponnusamy v Dato’ Seri Anwar bin Ibrahim, High Court of Malaya at Kuala Lumpur, Originating Summons filed 11 August 2025

He is not challenging of election process, or the electoral outcomes. His complaint strikes at something far more fundamental.

2. THE PLAINTIFF ASKS: “ON 19 NOVEMBER 2022, WAS DATO SERI ANWAR IBRAHIM’S QUALIFIED TO STAND AS A CANDIDATE FOR TAMBUN, PERAK?”

He argues that the answer is ‘No’, and that Anwar is neither entitled to have been ‘appointed’ Prime Minister; nor to ‘continue’ in that office.

His complaint has thrust the nation into uncharted constitutional waters.

Two seemingly simple clauses in the Federal Constitution are at heart of this dispute: these concern royal pardons²Article 42 grants the Yang di-Pertuan Agong sweeping pardon powers (that is not in issue); and their effect upon the qualification to electoral candidacy.

Yet within these provisions lies Malaysia’s most sophisticated legal puzzle. It would equally fascinate Westminster counsel, and Delhi’s constitutional experts.

3. THE FATAL TIMELINE

The chronology is stark, and unforgiving.

In 2008, Anwar Ibrahim was charged with a criminal offence.³It was for sodomising a male aide. After judicial appeals and reversals, the Federal Court in February 2015 upheld his conviction. It imposed a five-year sentence.

On 16 May 2018, His Majesty the King granted him an ‘unconditional’ pardon. He was released the same day.⁴The Straits Times, 10 Feb 2015, ‘A Timeline of Anwar’s Sodomy Cases’. See https://www.straitstimes.com/asia/se-asia/a-timeline-of-anwars-sodomy-cases

The constitutional collision occurs here.

When Anwar stood for election on 19 November 2022, the critical five-year period from his release would not have expired, not until 15 May 2023.⁵ Bernama, 5 Nov 2022, ‘Anwar in four corner fight for Tambun’. See https://www.bernama.com/en/news.php?id=2135444

If the plaintiff’s interpretation proves correct, Anwar contested his seat whilst being constitutionally ‘disqualified’.

This would render his subsequent ‘appointment’ as prime minister, invalid and unconstitutional.

Should the Prime Minister’s position collapse, the entire Cabinet falls with it.⁶Article 43(1) and (2)(a) ⁷Art. 43(2)(b)

4. THE CONSTITUTIONAL RIDDLE

The dispute centres upon the interplay between provisions that appear deceptively straightforward. Yet they harbour profound complexity.

Article 48(1)(e) disqualifies from parliamentary membership any person, “convicted of an offence… and sentenced to imprisonment for a term of not less than one year… and [who has] not received a free pardon.”⁸Federal Constitution of Malaysia, Article 48(1)(e)

Article 48(3) provides separately (perhaps independently) that “the disqualification… may be removed by the Yang di-Pertuan Agong.” It adds that disqualification “shall, if not so removed, cease at the end of the period of five years.”⁹Federal Constitution of Malaysia, Article 48(3)

5. THIS CREATES THREE POTENTIAL PATHWAYS FOR RESTORATION OF THE POLITICIAN’S ELECTORAL CANDIDACY

First, the Pardons Board can grant a ‘free’ pardon.¹⁰Art. 48(1)(e) (‘first limb’)

Second, the King –using the personal discretion granted by the Constitution, may “remove the disqualification.”¹¹ Art. 48(3)(‘second limb’)

Third, the waiting period of five years from release has elapsed.¹²Art. 48(3) (‘third limb’)

The haunting question in this case is: do these provisions operate harmoniously? Do they create distinct (or separate) requirements?

When the Yang di-Pertuan Agong grants a pardon under Article 42, does this ‘automatically’ remove political disqualifications under Article 48?

Or must His Majesty explicitly state: “We have removed any disqualification preventing this person from standing as a candidate”?

When the King grants a pardon—but does not explicitly use the magic words, “free pardon”—then what happens?

6. WHAT IF IT COULD BE ARGUED ARTICLE 48(3) COULD BE A ‘FREE-STANDING’ PROVISION

What is the consequence of this argument?

Then, the Yang di-Pertuan Agong could theoretically do one of three things:

(a) grant a pardon without removing political disabilities; or

(b) He could also remove disqualifications without granting a pardon; or

(c). He could grant a pardon, whether conditional or unconditional, and still remove the disqualification.

Think about it.

7. THE DOCTRINE OF HARMONIOUS CONSTRUCTION

Constitutional interpretation demands that courts resist choosing between conflicting provisions. Instead, they must find ways to give meaning to both. This principle emerges from centuries of English legal tradition.¹³Heydon’s Case (1584) 76 ER 637

Parliament, in its wisdom, enacted both articles. If a ‘free pardon’ under Article 48(1)(e) ‘automatically’ satisfied Article 48(3)’s requirements, why retain the provision in Art. 48(3)? The law abhors redundancy. Both clauses must serve distinct purposes—or risk constitutional meaninglessness.

Commonwealth courts have refined this approach through the “living tree” doctrine

Constitutional provisions must possess “growth and expansion within their natural limits.”¹⁴Edwards v Attorney-General of Canada [1930] AC 124 (PC)

Malaysian courts have explicitly embraced this “purposive” interpretation. They treat the Constitution as “a living document.”¹⁵Badan Peguam Malaysia v Kerajaan Malaysia [2008] 2 MLJ 285

8. THE TECHNICAL DISTINCTION: EXPRESS VERSUS IMPLIED

The current challenge illuminates a crucial legal distinction. Waytha Moorthy’s counsel argues that whilst Anwar received a ‘pardon’ under Article 42, this instrument did not expressly state that his Article 48(1)(e) disqualification “was removed.”¹⁶Waytha Moorthy Ponnusamy v Dato’ Seri Anwar bin Ibrahim, Affidavit in Support, para 12-15

In constitutional law, express requirements typically resist satisfaction through mere implication. They demand explicit compliance with prescribed procedures.

The language in Article 48(3) employs discretionary words

Under Art. 48(3), the disqualification “may be removed” by the King. This discretion is personal to His Majesty. It is not ‘automatic’. The King, “may act in his discretion … in any other case mentioned in this Constitution”.¹⁷Article 40(2), Federal Constitution And the Constitution in Art 48(3) expressly gives the King the discretion to either remove— or withhold –  the ‘disqualification’.

Just because the King grants a pardon, does not mean the recipient ‘automatically’ becomes eligible to stand for elections.

This occurs only if the King explicitly chooses to say so. His Majesty must exercise a choice. His ‘choice’, granted by the Constitution, cannot be ‘implied’. The King must speak.

Most significantly, harmonious construction requires giving effect to both Article 42’s pardon power and Article 48(3)’s removal mechanism.

If pardons ‘automatically’ satisfied Article 48(3)’s requirements, that provision would become constitutionally meaningless.

This is a result that the principle of harmonious construction seeks to avoid.

9. HOWEVER, A COUNTER-ARGUMENT DRAWS UPON COMMONWEALTH LEGAL TRADITION

In the US, a ‘free pardon’’ traditionally restores the person pardoned to their previous legal position as if the conviction never occurred¹⁸Ex parte Garland (1866) 71 US 333 Under this interpretation, a free pardon ‘automatically’ removes all legal consequences of conviction, including constitutional disqualifications.

The position is different in Malaysia, for we follow the law in the British Commonwealth. ‘Free pardon’ or ‘Pardon’ means that the sentence is completely wiped out (like that of the ‘free pardon’ granted to Anwar on 10 May 2018).¹⁹Article 48(1)(e), Federal Constitution. See also R v Foster [1984] 2 All ER 679. At page 684, it was held that a pardon “removes from a convict all the pains, penalties and punishment that ensue from the conviction”  While a pardon removes the punishment, it does not erase the conviction itself. Only a court has the power to quash a conviction. ²⁰See Article 48(1)(e), Federal Constitution. See also R v Foster [1984] 2 All ER 679. At page 684, it was held that a pardon “removes from a convict all the pains, penalties and punishment that ensue from the conviction”

An odd sentence in Anwar’s Instrument of Pardon—is it right?

If you study Anwar’s pardon, you will find there a surprising sentence that Anwar is, “deemed a person who has committed no wrong”.²¹at page 3 With respect, the Pardons Board has no power to change the character of the court sentence.²²See paragraph 16 at. https://www.gkg.legal/could-the-king-or-the-pardons-board-insert-an-addendum-into-a-pardon/ Only a court can do that. So that sentence is without jurisdiction and has no power to bind anyone.²³The Federal Court in Eu Finance Berhad v. Lim Yoke Foo [1982] 2 MLJ 37. The Federal Court said: ”Where a decision is null by reason of want of jurisdiction, it cannot be cured in any appellate proceedings; failure to take advantage of this somewhat futile remedy does not affect the nullity inherent in the challenged decision. The party affected by the decision may appeal ‘but he is not bound to (do so), because he is at liberty to treat the act as void’ [Birmingham (Churchwardens and Overseers) v Shaw (1849) 10 QB 868 880116 ER 329 at page 880 ( per Denman C.J.)]. In Barnard v National Dock Labour Board [1953] 2 QB 18, 34 it was said that, as a notice of suspension made by the local board was a nullity, ‘the fact that there was an unsuccessful appeal on it cannot turn that which was a nullity into an effective suspension’ (at page 34 per Singleton L.J.). Ridge v Baldwin [1964] AC 40 is to the same effect.”  The Court continued:  ”Lord Denning said in Director of Public Prosecutions v Head [1959] AC 83 (at page 111) that if an order was void, it would in law be a nullity and there would be no need for an order to quash it as it would be automatically null and void without more ado. Lord Denning as Master of the Rolls so held too in Regina v Paddington Valuation Officer & Anor, Ex parte Peachey Property Corporation Ltd (No 2) [1966] 1 QB 380 (at page 402), 402 . The judgment of this court in Pow Hing & Anor v Registrar of Titles, Malacca [1981] 1 MLJ 155, 157 refers (at page 157) to the decision of the House of Lords in London & Clydeside Estates Ltd v Aberdeen District Council & Anor [1980] 1 WLR 182, 189 and a passage in the judgment of the Lord Chancellor, Lord Hailsham of St. Marylebone (at page 189) where he refers to a spectrum of possibilities as the legal consequence of non-compliance with statutory requirements and speaks of one extreme where there has been such an outrageous and flagrant violation of a fundamental obligation that what has been done may be safely ignored and treated as having no legal consequence and in the event of any reliance sought thereon the party affected is entitled to use the defect simply as a shield or defence without having taken any positive action of his own.”

The power to pardon is the power of the Government.

You will note that Anwar’s instrument of pardon (at any rate that which was disclosed to the court) was signed by Tun Mahathir. Any ‘errors’ discernible ‘on the face of the instrument’ are attributable to the Government. ²⁴Historically, it was a creature of common law. In the old days, only the King possessed the power to grant pardons. When in England parliamentary supremacy took over, that power was passed to Parliament, and then to the Government (commonly called the ‘Executive’. Do you know why it was called ‘the Executive’? The Government is the Butler of the Parliament. Parliament makes laws. The Government carries it out. Ours (like Britain) is a fused system. The power of Parliament and the Government is exercised through MPs who have a leg in the Government as the Cabinet, and in Parliament as MPs. When our Constitution was established common law was brought into it.  The first principle is this: The pardoning power of the King is not absolute.

A respected scholar’s counter-argument:

Professor Emeritus Datuk Dr Shad Saleem Faruqi champions this ‘automatic removal’ theory.

He cites the 1969 Bandar Malacca precedent. He argues that requiring ‘express removal’ creates ‘unnecessary complications’.

However, with respectful deference, this analysis may overlook Malaysia’s constitutional architecture. The Bandar Melaka precedent emerged without judicial scrutiny of Article 48(3)’s specific requirements. ‘Political acceptance’ is not the same as, and is fundamentally different, from ‘constitutional compliance’.

10. COMMONWEALTH PERSPECTIVES

Across the Commonwealth, sophisticated approaches have emerged.

Australia’s High Court consistently applies harmonious construction. It emphasises that “construction should favour coherence in the law.”²⁵Commissioner of Police (NSW) v Eaton [2013] HCA 2

India’s approach proves particularly instructive given constitutional similarities. The Indian Supreme Court emphasises that harmonious construction must not destroy constitutional provisions. Rather, it must preserve their essential character.²⁶State of Bombay v United Motors (India) Ltd AIR 1953 SC 252

Canada’s Supreme Court offers perhaps the most structured approach. It emphasises that constitutional interpretation must be both “purposive” and “contextual.”²⁷Reference re Same-Sex Marriage [2004] 3 SCR 698 This allows courts to reconcile textual conflicts through broader constitutional understanding.

11. POSSIBLE JUDICIAL SOLUTIONS

Malaysian courts possess several interpretative pathways.

First, they might interpret Article 48(1)(e) ‘broadly’ to encompass any effective pardon. This would emphasise constitutional unity. It would serve the underlying purpose of determining rehabilitation through royal clemency.

Alternatively, they might distinguish between Article 42’s power to pardon and Article 48(3)’s removal mechanism. They would treat them as ‘separate constitutional instruments’ with distinct and separate requirements.

Electoral candidacy disqualifications would thus require explicit removal through ‘Article 48(3) procedures’.

This would apply even where Article 42 pardons address criminal penalties.

A third approach would emphasise the ‘constitutional presumption against disqualification’.

It could be argued that:

Democratic participation represents a fundamental right.

Constitutional disqualifications should be interpreted restrictively.

Ambiguities should be resolved favouring political participation.

Would that be a correct argument?

12. THE DEEPER STAKES

This controversy transcends whether royal mercy can overcome parliamentary disqualification.

It asks how wisely our courts can navigate the complex constitutional architecture defining Malaysian democracy.

Constitutional interpretation in Malaysia demands balancing multiple values. These include royal prerogatives against democratic accountability. Individual rights must be weighed against collective welfare.

These tensions cannot yield to simple textual literalism. They require sophisticated constitutional reasoning. This characterises mature democratic systems.

The constitutional interpretation adopted by our courts will establish important precedents. These transcend this immediate controversy. They will influence the broader development of Malaysian constitutional law for generations.

13. THE CONSTITUTIONAL DANCE

This constitutional conundrum strikes at Malaysia’s democratic heart. Here royal prerogative meets parliamentary sovereignty.

This collision between constitutional values reflects the sophisticated framework our founding fathers bequeathed us.

The wisdom lies not in choosing between competing principles. It lies in finding interpretations that honour both.

Our courts must choose between textual precision and purposive interpretation.

This choice will shape the framework for future generations of Malaysian leaders.

The Yang di-Pertuan Agong’s words carry immense constitutional weight.

Paradoxically, the absence of certain words may prove equally significant.

These may define the boundaries of democratic participation for decades to come.

The answer will determine not merely one politician’s fate.

It will determine the constitutional principles guiding our nation for years to come.

In this delicate constitutional dance, every syllable matters.

History awaits the judiciary’s next move.

 

∞§∞

Gratitude:

The author thanks Mr UK Menon, Miss KN Geetha, Miss TP Vaani, Miss JN Lheela, and Miss Lydia Jaynthi.

We thank Alvin Briones of Unsplash for the image.

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