Pendakwa Raya v JIVA A/L GOPAL KRISHNAN

05rj-11-12-2024p Federal Court (Mahkamah Persekutuan) 11 November 2025 • 05(RJ)-11-12/2024(P) • 34 min read

24 cases cited (0 SG, 24 foreign)

Catchwords

Jenayah — Hukuman mati — Semakan hukuman mati — semakan hukuman mati selepas diberi pengampunan oleh Lembaga Pengampunan Perlembagaan Persekutuan — Perkara 42 — Pengampunan Diraja — Kuasa Lembaga Pengampunan — Keputusan pengampunan — Sama ada boleh dicabar melalui semakan kehakiman Mahkamah Persekutuan — Bidang kuasa — Bidang kuasa penyemakan sementara — Semakan hukuman mati — s. 2 Akta Semakan Hukuman Mati dan Penjara Sepanjang Hayat (Bidang Kuasa Sementara Mahkamah Persekutuan) 2023 (Akta 847) Amalan dan Prosedur — Kaedah 137 Kaedah-Kaedah Mahkamah Persekutuan 1995 — Permohonan semakan hukuman — Sama ada terpakai selepas pengampunan Diraja Lembaga Pengampunan — Kuasa perlembagaan — Keputusan mengubah hukuman mati — Kesan terhadap bidang kuasa Mahkamah Persekutuan Isu Undang-Undang — Sama ada seseorang yang telah dihukum mati dan kemudiannya memperoleh pengampunan di bawah Perkara 42 Perlembagaan Persekutuan berhak/boleh mengemukakan permohonan semakan semula hukuman mati — Sama ada Mahkamah Persekutuan mempunyai bidang kuasa penyemakan sementara di bawah s. 2 Akta 847 selepas hukuman diubah oleh Lembaga Pengampunan

Practice Areas

Criminal Law Civil Procedure Constitutional Law Administrative Law

Judges (6)

Abu Bakar bin Jais Coram Azizah binti Haji Nawawi Coram Che Mohd Ruzima bin Ghazali Delivered Hasnah binti Dato' Mohammed Hashim Coram Utama Wan Ahmad Farid bin Wan Salleh Delivered Wan Ahmad Farid bin Wan Salleh Delivered

Parties (2)

Pendakwa Raya Appellant Jiva a/l Gopal Krishnan Respondent

Case Significance

Clarifies that once a death sentence is commuted by a royal pardon under Article 42 of the Federal Constitution, the Federal Court has no temporary review jurisdiction under Act 847 to revisit the sentence and cannot review the non-justiciable decision of the Pardons Board, the court setting aside its earlier decision on the Public Prosecutor's review application.

This Federal Court decision concerns applications by the Public Prosecutor (Pendakwa Raya), under rule 137 of the Rules of the Federal Court 1995, to review an earlier majority decision of the court that had allowed several death-row prisoners to apply to have their death sentences reviewed under section 2 of the Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Act 2023 (Act 847). The particular respondent to this application had already received a royal pardon under Article 42 of the Federal Constitution before the earlier review was heard. The applications were heard together in respect of three prisoners after a fourth was released and his review discontinued. The central question was whether a person sentenced to death who then obtains a pardon under Article 42, commuting the sentence, may still apply to the Federal Court to review the death sentence, and whether the court retains temporary review jurisdiction under Act 847 once the Pardons Board has altered the sentence. The court reasoned that a decision of the Pardons Board under Article 42 cannot be challenged or judicially reviewed, and that once a prisoner had obtained a pardon he was no longer, in substance, a person under sentence of death capable of invoking section 3(1) of Act 847; to entertain such an application would be tantamount to challenging the Pardons Board's decision, which the law does not permit, and the court had no jurisdiction to alter that decision. Finding the Public Prosecutor's review applications to have merit, the court set aside its earlier decision of 27 August 2024 and cancelled all orders made pursuant to it. A supporting judgment observed that the prisoners were not prejudiced, since they could petition the relevant Pardons Board to reconsider the commencement date of their imprisonment. The judgment clarifies the interaction between the royal prerogative of mercy and the court's temporary review jurisdiction.

Summary

The Public Prosecutor applied for review of the Federal Court's earlier decision allowing death sentence review applications from prisoners who had already received Royal Pardons commuting their sentences. The Federal Court held that once a Royal Pardon has been granted commuting a death sentence, the prisoner is no longer a 'person under sentence of death' within the meaning of the Death Sentence and Life Imprisonment Review Act 2023, and therefore the Federal Court lacks jurisdiction to review the sentence. The review applications were allowed and the earlier orders were set aside.

Can a prisoner who has received a royal pardon still seek review of the death sentence under Act 847?

No. The Federal Court held that once a prisoner obtains a pardon under Article 42 of the Federal Constitution commuting the sentence, he is no longer a person under sentence of death able to invoke section 3(1) of Act 847, and the court has no jurisdiction to review or alter the Pardons Board's decision, which cannot be challenged or judicially reviewed.

What did the Federal Court order on the Public Prosecutor's review applications?

It found the Public Prosecutor's applications under rule 137 of the Rules of the Federal Court 1995 to have merit, set aside its earlier majority decision of 27 August 2024, and cancelled all orders made pursuant to that decision; a supporting judgment noted the prisoners could still petition the Pardons Board to reconsider the commencement date of their imprisonment.

Cases Cited (24)

UK (7)

[1910] AC 444 [1948] Ch 145 [1951] All ER 839 [1976] 1 All ER 353 [1980] 1 WLR 142 [1980] 3 WLR 209 [1983] 2 WLR 16

MY (17)

[1968] 2 MLJ 249 [1979] 2 MLJ 170 [1981] 1 MLJ 222 [1983] 2 MLJ 116 [1985] 2 MLJ 385 [1994] 4 CLJ 285 [1997] 1 MLJ 94 [2002] 4 MLJ 529 [2004] 4 CLJ 194 [2006] 4 CLJ 195 [2006] 6 MLJ 97 [2010] 6 CLJ 204 [2012] 1 CLJ 49 [2021] 2 MLJ 60 [2021] 6 MLJ 348 [2021] 8 CLJ 409 [2022] 1 MLJ 778

Judgment

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Source: eJudgment (05rj-11-12-2024p)