PUTRAJAYA, Aug 28 – The Federal Court on Tuesday ruled that it has the authority to hear reviews filed by prisoners who have already been granted pardons for their death penalty sentences.
A three-member bench, led by Justice Datuk Harmindar Singh Dhaliwal, rendered a 2-1 majority decision affirming the court’s jurisdiction to hear reviews filed by four individuals: P. Balakrishnan, G. Jiva, Thai national Phrueksa Taemchim, and Zambian national Mailesi Phiri.
Justices Harmindar Singh and Datuk Hanipah Farikullah were in the majority, while Justice Datuk Nordin Hassan dissented.
The four individuals were initially convicted of drug trafficking and sentenced to death.
However, several state Pardons Boards later granted them clemency, commuting their death sentences to 30 years imprisonment, starting from the dates of the boards’ decisions.
Consequently, the time they served before receiving the pardon will not be considered in calculating their total term of imprisonment.
The prison authorities did not refer the cases of the four individuals for review under the Abolition of Mandatory Death Penalty Act 2023 (Act 846) and the Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of The Federal Court) Act 2023 because they had already been granted pardons, making them ineligible to apply for a review.
The four subsequently applied to the Federal Court seeking to vary the state Pardon Boards’ decisions.
On Tuesday, the Federal Court ruled that it has the jurisdiction to hear their applications for review, and subsequently granted their requests.
The court imposed 30 years of imprisonment effective from each individual’s date of arrest, while Balakrishnan, 47, was ordered to be given 12 strokes of the cane.
Balakrishnan will be released from prison after the caning, while Jiva will have three more years to serve. Phrueksa and Mailesi have another five years remaining on their sentences.
In his submission earlier, lawyer Datuk N.Sivananthan representing Balakrishnan and Jiva, 54, both self-employed, said if their reviews were granted, Balakrishnan and Jiva would be released 20 and 15 years earlier, respectively.
Meanwhile, Phrueksa’s lawyer K.Simon Murali, argued that his client, a 40-year-old single mother, was entitled under the law to apply for a revision of her death sentence.
Lawyer Abdul Rashid Ismail, who represented Mailesi Phiri, 47, contended that excluding her from the review process would violate her right to life under Article 5 (1) of the Federal Constitution.
Balakrishnan was granted a pardon by the Pardons Board of Kedah on March 29, 2022; Jiva and Mailesi received their pardons from the Penang Pardons Board on June 13, 2022, and December 13, 2021, respectively.
Phrueksa was pardoned by the Federal Territory of Kuala Lumpur Pardons Board on Sept 21, 2017.
Deputy public prosecutor Tetralina Ahmed Fauzi, however, argued that the decision of the Pardons Boards cannot be reviewed by the court.
