In a split decision, the Federal Court has granted the prosecution leave to review another bench’s decision to allow three convicts to begin their jail term from the date of their arrest rather than the date of their partial pardon.
Chief Justice Wan Ahmad Farid Wan Salleh, who led the majority, said the prosecution had crossed the threshold to obtain leave under Rule 137 of the Federal Court Rules 1995.
Court of Appeal president Abu Bakar Jais, Chief Judge of Malaya Hasnah Hashim, and Chief Judge of Sabah and Sarawak Azizah Nawawi concurred with the top judge, while Justice Rhodzariah Bujang dissented.
In view of the bench being divided, Wan Farid said a fresh panel would be formed to hear the substantive merit of the review on Oct 27.
At the review hearing, the bench will decide whether the Federal Court has jurisdiction under the Revision of the Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Act 2023 to review a pardons board’s decision.
Another question is whether the Federal Court has jurisdiction under the 2023 law to entertain applications to review decisions made by a pardons board.
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.
On Aug 27, 2024, the Federal Court, also in a split ruling, held that it had jurisdiction under a 2023 law to revisit decisions made by three pardons boards.
Justices Harmindar Singh Dhaliwal, now retired, and Hanipah Farikullah ruled that the commuted 30-year jail terms handed down on the three inmates – G Jiva, 56, Thai national Phrueksa Thaemchim, 42, and Zambian national Mailesi Phiri, 48 – for drug trafficking should run from the date of their arrest.
In doing so, the court overturned orders by the pardons boards of Kedah, Penang and the federal territories that the jail terms run from the date the trio’s death sentence was commuted.
Justice Nordin Hassan dissented.
The prosecution then filed a review application arguing that the judges in the majority had acted beyond their jurisdiction under the 2023 law.
N Sivananthan is appearing for Jiva;, K Simon Murali for Phrueksa; and Abdul Rashid Ismail for Mailesi.
Deputy public prosecutors Saiful Edris Zainuddin, Tetralina Ahmed Fauzi, Ng Siew Wee and Solehah Noratikah Ismail are appearing for the prosecution.
