PUTRAJAYA: The Federal Court has fixed Nov 12 to deliver its verdict on the prosecution’s bid to overturn an earlier panel’s decision that permitted prisoners granted clemency from death sentences to apply for a review under a 2023 law.
A five-member bench led by Chief Justice Datuk Seri Wan Ahmad Farid Wan Salleh fixed the date for decision on the prosecution’s review application made under Rule 137 of the Federal Court Rules 1995, after the court heard submissions from both the prosecution and defence counsels representing three prisoners.
The other judges presiding on the panel are Court of Appeal President Datuk Abu Bakar Jais, Chief Judge of Malaya Tan Sri Hasnah Mohammed Hashim, Chief Judge of Sabah and Sarawak Datuk Azizah Nawawi and Court of Appeal judge Datuk Che Mohd Ruzima Ghazali.
In the proceeding on Wednesday (Nov 5), Deputy Public Prosecutor Datuk Seri Saiful Edris Zainuddin, appearing for the prosecution, argued that prisoners whose death sentence were commuted to life imprisonment through clemency are not entitled to seek further review in the Federal Court under the Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of The Federal Court) Act 2023 (Act 847).
He said Act 847 only applies to two specific groups - prisoners whose death sentences were converted to natural life imprisonment, and those whose clemency pleas had been rejected by the Pardons Board.
Saiful Edris contended that extending the review right to those already granted clemency would go beyond the scope of Act 847 and encroached upon the prerogative of mercy vested exclusively under Article 42 of the Federal Constitution.
Act 847 serves as a special and temporary mechanism for death-row and natural life-sentenced inmates to seek sentence revisions following the enactment of Abolition of Mandatory Death Penalty Act 2023 (Act 846).
He said the three prisoners, namely G. Jiva, 55, Thai national Phrueksa Taemchim, 41, and Zambian national Mailesi Phiri, 48, still have remedies through the clemency process under the Prison Regulations 2000 to apply for their sentences to run from the date of their arrest.
The trio, who had previously been sentenced to death for drug trafficking offences, later received clemency from the Pardons Board, commuting their death sentences to life imprisonment of 30 years starting from the date of the boards’ decision. They subsequently applied to the Federal Court under Act 847 seeking the Federal Court to revise their sentences to run from the date of their respective arrests.
The Federal Court’s three-man bench, on Aug 27, last year, in a 2-1 majority granted the trio’s application. It ruled that the Federal Court had jurisdiction to hear the reviews under the Act 847.
Following the decision, the prosecution filed an application under Rule 137 of the Rules of the Federal Court 1995 to seek leave to review that decision. The Federal Court, on Sept 10, this year, granted the leave to the prosecution to pursue its review application.
In the proceeding, the lawyers respectively representing the trio argued that the prisoners who are no longer on death row can seek a review under the Act 847.
Mailesi’s lawyer Abdul Rashid Ismail argued that any interpretation to the law that excludes pardoned persons would effectively punish those who received mercy while rewarding those who did not. He said his client has served 14 years in prison. Under the current law, she faces 27 more years, adding that this exceeded any sentences that could be imposed today for the same offence.
Meanwhile, Jiva’s lawyer Datuk N. Sivananthan, assisted by Wan Muhamad Yusuf Wan Hussin, submitted that his client would be placed at an unfair position if required to continue serving his sentence from the date of commutation, whereas others in similar positions had already been released following the Federal Court’s August 27 ruling last year.
He said his client is 55 years of age and if the imprisonment sentence is to commence from the date of commutation, he would be released when he is 72 years old.
Lawyer K. Simon Murali representing Phrueksa submitted that his client is unable to re-apply for a review under Act 847 if her application to vary her sentence to run from her date of arrest is rejected as the Pardon Board’s decision cannot be challenged.- Bernama
