Pendakwa Raya v PHRUEKSA TAEMCHIM

Case Significance

Marks the boundary between the royal prerogative of mercy under Article 42 of the Federal Constitution and the Federal Court's temporary review jurisdiction under Act 847, holding that a prisoner whose death sentence has been commuted by pardon can no longer invoke that review jurisdiction.

This Federal Court decision, one of several review applications heard together, concerns an application by the Public Prosecutor (Pendakwa Raya) under rule 137 of the Rules of the Federal Court 1995 to review the court's earlier majority decision of 27 August 2024, which had allowed a foreign national on death row to apply to have the death sentence 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). By the time of the earlier review, the respondent had already obtained a royal pardon under Article 42 of the Federal Constitution from the relevant pardoning authority, commuting the death sentence. The question was whether the court retained temporary jurisdiction under Act 847 to review a death sentence that had already been altered through the exercise of the prerogative of mercy. The court examined the wording of section 2(1) and section 3(1) of Act 847, which confer a review avenue on a person sentenced to death, and held that a person whose sentence has been commuted by pardon no longer falls within that description. It reasoned that a decision of the Pardons Board under Article 42 is not open to challenge or judicial review, so that permitting a review application after a pardon would in substance be an impermissible challenge to the Pardons Board's decision, over which the court has no jurisdiction. Accordingly, the court held the Public Prosecutor's review application to be meritorious, set aside its earlier decision of 27 August 2024, and cancelled all consequential orders. A supporting judgment emphasised that the respondent retained the avenue of petitioning the Pardons Board to reconsider the commencement date of the imprisonment, following the precedent of an earlier pardon decision. The judgment marks the boundary between the prerogative of mercy and the court's statutory review power.