Justice Ruzima Ghazali, who delivered the unanimous decision of a five-member bench, said the decision of a previous apex court bench to revise the sentence amounted to interfering with the clemency process.
“It amounts to challenging the decision of the pardons boards, which have a separate jurisdiction from the courts,” he said in allowing the prosecution’s review under Rule 137 of the Federal Court Rules 1995 and setting aside the 2-1 majority ruling handed down last year.
Che Ruzima, a co-opted Court of Appeal judge, said there was a series of judicial pronouncements to the effect that the decisions of pardons boards are non-justiciable and therefore cannot be entertained by the courts.
Chief Justice Wan Ahmad Farid Wan Salleh chaired the bench which included Court of Appeal president Abu Bakar Jais, Chief Judge of Malaya Hasnah Hashim, and Chief Judge of Sabah and Sarawak Azizah Nawawi.
On Aug 27, 2024, the Federal Court ruled that the commuted 30-year jail terms handed down for drug trafficking on the three inmates – G Jiva, 56, Thai national Phrueksa Thaemchim, 42, and Zambian national Mailesi Phiri, 48 – should run from the date of their arrest.
In doing so, the three-member bench led by Justice Harmindar Singh Dhaliwal, who is now retired, overturned orders by the pardons boards of Kedah, Penang and the federal territories that the jail terms should run from the date the trio’s death sentence was commuted.
Others who sat on the bench were Justices Hanipah Farikullah and Nordin Hassan. Nordin dissented.
The prosecution filed a review application arguing that the judges in the majority had acted beyond their jurisdiction under the Revision of the Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Act 2023 Act (Act 847) to review a pardons board’s decision.
Ruzima said in his ruling today that a literal reading of Sections 2(1) and 4 (1) of Act 847 only permits convicts who are serving death sentences or natural life imprisonment (held in prison until death) to be eligible for a review under this temporary law.
He said Jiva, Phrueksa and Mailesi, who appeared before their respective boards, had their death sentences commuted to life imprisonment, to begin from the date of their respective pardon orders.
“As a result, their status as condemned prisoners was altered and they could not come to the court under Act 847 to have their jail term begin from the dates of their arrest,” he said.
Wan Farid, in his supplementary judgment, said all was not lost for the three as they could make another application before their respective pardons boards for a review of their sentence.
“This is allowed under Rules 54 and 113 of the Prison Rules and Regulations 2000,” he said, adding that there had been a precedent by the Penang Pardons Boards to review its own decision.
Wan Farid said the attorney-general, as a member of all pardons boards in the country, could provide his advice for due consideration to fresh applications by the three.
Deputy public prosecutors Saiful Edris Zainuddin, Tetralina Ahmed Fauzi, Solehah Noratikah Ismail and Arif Aizuddin Masrom appeared for the prosecution.
Lawyer K Simon Murali appeared for Phrueksa and N Sivananthan for Jiva, with Abdul Rashid Ismail acting for Mailesi.
At a previous hearing, it was revealed that about 120 other convicts faced a similar predicament to that of the three applicants in this case.