Has the Federal Court usurped powers of the Pardons Board, lawyers ask

Since Nov 14, the Federal Court has been reviewing the sentences of convicts on death row and those with natural life jail terms.

PETALING JAYA: Criminal law practitioners are questioning whether the Federal Court has exceeded its jurisdiction by further reviewing the sentences of convicted murderers and drug traffickers which have been the subject of a successful pardon application.

They further suggest that the Revision of the Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Act 2023 may be unconstitutional to the extent that it transgresses the authority of the Pardons Board.

The revisionary legislation was enacted earlier this year following the abolition by Parliament of the mandatory death and natural life imprisonment penalties.

Since Nov 14, the apex court has been sitting to review the sentences of those on death row, and has commuted them to jail terms of between 30 and 40 years. These cases involve convicts whose petitions for pardon have not gone up for the consideration of the Pardons Board.

The bench had also been reducing natural life jail terms imposed by the Pardons Board to fixed jail terms. Lawyers say the Federal Court may be acting unconstitutionally when dealing with these cases.

Under the now-abolished natural life jail term, convicts are to remain in prison until they die.

Lawyer Salim Bashir said under Article 42 of the Federal Constitution, the decision of the Pardons Board is not susceptible to any form of review.

However, Section 4 of the 2023 Act grants power to the apex court to review natural life sentences, “notwithstanding the determination of pardon under Article 42”.

“This creates a conundrum as to the constitutionality of the provision,” the former Malaysian Bar president told FMT.

Senior lawyer Jagjit Singh, said the Federal Court would be exceeding its authority by altering the decision of the Pardons Board, an executive arm of the government.

“At best, the apex court can only review its own decision in criminal or civil cases,” he said.

He said the apex court may only revise a decision if the Pardons Board gives it the authority to allow judges to impose an appropriate alternative sentence.

Jagjit, who has handled multiple applications to the Pardons Board, including that of the late former youth and sports minister Mokhtar Hashim, said those who have been given a natural life jail term must look to the Pardons Board for their remedy.

“Those in this group could file another petition to reduce the natural life sentence to a jail term,” he added.

Jagjit said Mokhtar, who was convicted for the 1982 murder of then Gemencheh assemblyman Taha Talib had his death sentence commuted to life imprisonment by the Negeri Sembilan Pardons Board.

The lawyer said Mokhtar made a subsequent application for clemency and it was further reduced to a fixed jail term, which eventually saw him freed in or around 1991.

Lawyer A Srimurugan said in the case of Superintendent of Pudu Prison & Others v Sim Kie Chon (1986), the Supreme Court (now Federal Court) held that mercy is not the subject of legal rights as it begins where legal rights end.

He said the celebrated judgment of the three-member bench in that case noted that Article 42 is a reiteration of the prerogative power of mercy exercisable on the advice of the appropriate Pardons Board.

Lawyer Rafique Rashid Ali said the apex court could only revise the natural life sentence of those convicted of, for example, firearms possession to a jail term provided their case had not gone to the Pardons Board.

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“The Act would violate Article 42 even if Parliament had intended to give the court the power to review the sentence of such offenders,” he said.

Rafique said there is now the possibility of victims’ families filing a review of apex court rulings in the past weeks.