Federal Court holds it can review Pardons Board’s decisions

 

The Federal Court allowed applications by convicted drug traffickers P Balakrishnan, G Jiva, Phrueksa Thaemchim and Mailesi Phiri for their reduced jail terms to run from the date of their arrests.

PUTRAJAYA: 

The Federal Court has, in a split decision, ruled that it has jurisdiction to review decisions made by a Pardons Board as to when a commuted jail term should commence.

Announcing the majority decision, bench chairman Justice Harmindar Singh Dhaliwal said the apex court may review such cases if they fall within the purview of the Revision of the Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Act 2023.

Justice Hanipah Farikullah concurred with Harmindar while Justice Nordin Hassan dissented.

The majority judges allowed applications by four persons convicted of drug trafficking, including two foreign women, for their respective 30-year jail terms to begin from the date of their arrests.

In doing so, the court overturned orders by the respective Pardons Boards of Kedah, Penang and the federal territories that the jail terms run from the date the pardon was granted.

Earlier, deputy public prosecutor Tetralina Ahmed Fauzi objected to the applications, arguing that the apex court had no jurisdiction to review pardons under the 2023 legislation following Parliament’s abolition of the mandatory death penalty last year.

Their remedy is to return to the boards to have their sentence reviewed,

 Tetralina said.

Counsel N Sivananthan, who represented P Balakrishnan and G Jiva, said the prison authorities had failed to refer his clients’ cases for a review by the Pardons Board, resulting in them having to engage counsel to highlight their plights.

The lawyer said the spirit of the debate in Parliament over the law clearly suggested that the legislation passed was intended to cover both those who were granted clemency and those who were not.

In the present case, it appears those whose reviews were heard by the court were in a better position than those given a commutation by the boards. This could not have been the intention of the legislature,

 he said.

Lawyer K Simon Murali, who acted for Thai national Phrueksa Thaemchim, 40, submitted that the Federal Court had jurisdiction to review his client’s application based on the precedent set in the cases of M Rajendran and G Krishna Rao.

On Nov 16 last year, a five-member apex court substituted the natural life sentences imposed by the Perak Pardons Board on ex-cop Rajendran, 56, and debt collector Krishna Rao, 47 to a 36-year jail term.

The duo were convicted of murdering four people, including the wife and son of a goldsmith in Ipoh in 1998, and sentenced to jail for the rest of their natural lives.

However, the apex court commuted their sentences to a 36-year jail term. The apex court also ordered their sentences to run from March 13, 1998, the day of their arrest.

Simon said the Federal Court did not transgress into the domain of the royal prerogative under Article 42 of the Federal Constitution as the 2023 legislation gave the court the power to review cases irrespective of whether a pardon was granted.

Lawyer Abdul Rashid Ismail, who represented Zambian national Mailesi Phiri, 47, said any attempt to stop his client from seeking a review would violate his rights to life and equality before the law under Articles 5 and 8 of the Federal Constitution.

Balakrishan, 47 had his death sentence affirmed by the Federal Court on March 14, 2012 but the Kedah Pardons Board commuted it to 30 years’ jail beginning March 29, 2022.

Following today’s decision which saw the commencement date of his sentence backdated to April 28, 2002, and taking into account a one-third remission for good behaviour, Balakrishnan will walk free as soon as he has received 12 strokes of the rotan.

Jiva, 54, whose sentence was commuted by the Penang Pardons Board, will have to serve another three years behind bars before he is freed.

Phrueksa, who received a pardon from the Federal Territories Pardons Board, and Mailesi, who was granted a pardon by the Penang Pardons Board, will serve another five years before they can return home.

Sivananthan told reporters that today’s ruling had opened the doors for another 70 convicts in similar predicaments to seek a review. - FMT