Does a pardon erase the conviction, or just its consequences?

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A Pardon Does Not Erase a Conviction, But It Does Remove Legal Consequences

A pardon fundamentally alters the legal standing of a criminal conviction by removing its penalties and associated ramifications. However, it does not expunge the record of the conviction itself. The English Court of Appeal, in the case of Regina v Foster [1985] QB 115, clarified that a free pardon serves to eliminate "all pains penalties and punishments whatsoever that from the said conviction may ensue, but not to eliminate the conviction itself." While the conviction remains on record, the practical effect of a pardon is to render the situation as if the individual had not committed the offence. This executive power operates distinctly from the judicial function of courts, which are responsible for convicting and acquitting individuals.
The Nature of Executive vs. Judicial Power

The power to grant a pardon is an executive prerogative, separate from the judicial process of conviction and sentencing. Courts determine guilt and impose sentences based on evidence and law, whereas the executive branch, through the power of pardon, can intervene to mitigate the outcomes of these judicial decisions. This distinction was highlighted by the Indian Supreme Court in Kehar Singh v Union of India 1989 AIR 653, which stated that the President acts on a "wholly different plane" from the court, exercising a constitutional power distinct from judicial power. This allows the executive to review the merits of a conviction and provide relief, even if it means arriving at a different conclusion than the courts did.
Purpose and Safeguard Against Legal Harshness

The underlying rationale for the pardon power is to serve as a crucial safeguard against potential injustices or overly severe outcomes within the criminal justice system. It is designed to protect fundamental rights such as the right to life and personal liberty, acting as a check on the administration of criminal law. The executive authority holding the power to pardon can, in essence, revisit the evidence presented during a trial and reach an alternative conclusion, thereby offering a recourse when the application of law might lead to excessively harsh consequences.
Limits on Pardon Power and Judicial Review

Despite the broad nature of the pardon power, its exercise is not entirely unfettered and can be subject to judicial review under specific circumstances. Courts may intervene if the decision to grant or withhold a pardon was based on irrelevant considerations, was irrational, discriminatory, or exercised in bad faith (mala fide). While certain grounds like religion, caste, or political loyalty are explicitly prohibited for consideration in granting pardons, the extent to which Malaysian courts can review such decisions has been a subject of debate. Traditionally, Malaysian courts have held that this power is unreviewable, a stance that some argue warrants reconsideration in light of evolving judicial review principles.
"Full Pardon" vs. "Free Pardon"

Legally, the distinction between a "full pardon" and a "free pardon" is negligible, as both carry the same legal effect. They serve to nullify all the legal consequences and penalties stemming from a conviction. However, neither type of pardon operates to erase the historical fact of the conviction itself. The quashing of a conviction remains exclusively within the purview of a court of law. For individuals facing electoral challenges, such as in the context of the Permatang Pauh by-elections, a pardon allows them to contest, as it removes the disqualifications associated with the conviction's consequences.

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Does a pardon erase the conviction, or just its consequences?

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