Prosecutors say the apex court’s decision on Aug 27 this year was inconsistent with powers accorded to it under the Revision of the Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Act 2023.
The Federal Court had by a 2-1 majority ruled that it was entitled to review the pardons granted to convicted drug traffickers G Jiva and P Balakrishnan under the 2023 law.
Justices Harminder Singh Dhaliwal and Hanipah Farikullah ruled that the commuted 30-year jail terms handed down on the duo and two others should run from the date of their arrests rather than the date of their pardon.
Justice Nordin Hassan dissented.
In the application made under Rule 137 of the Federal Court Rules 1995 and filed last week, prosecutors asked for that ruling to be set aside in the interest of justice. They also call for the decisions made by Pardons Boards of Kedah, Penang and the Federal Territories to be restored.
In an affidavit filed in support of the application, deputy public prosecutor Tetralina Ahmed Fauzi, said convicts handed mandatory death sentences should only be allowed to turn to the apex court if their clemency applications are rejected by the pardons board.
She said the power to pardon convicts is governed by Article 42 of the Federal Constitution and cannot be challenged in a court of law as it is a royal prerogative power.
At the hearing on Aug 27, Tetralina had submitted that the apex court had no jurisdiction to review pardons under the 2023 law.
“Their remedy is to return to the boards to have their sentence reviewed,” she said.
Lawyer N Sivananthan, who represented the duo, on the other hand argued that the spirit of the parliamentary debates held over the legislation suggested that it was intended to cover both those who were granted clemency and those who were not.
In the case of Jiva, 54, the Federal Court ordered that his 30-year jail term commence on June 28, 2007 instead of June 13, 2022, leaving him to serve only three years behind bars before he is freed.
Meanwhile, Balakrishnan, 47, would be allowed to go free as soon as he received 12 strokes of the rotan after the court revised his sentence to run from his arrest on April 28, 2002, instead of from March 29, 2022.
Sivananthan said another 70 convicts in a similar predicament have applied for the apex court to review their cases, but all have been put on hold.