Pendakwa Raya v MAILESI PHIRI

05rj-9-11-2024p Federal Court (Mahkamah Persekutuan) 11 November 2025 • 05(RJ)-9-11/2024(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 Mailesi Phiri Respondent

Case Significance

Defines the limits of the Federal Court's temporary sentence-review jurisdiction under Act 847, holding that a prisoner whose death sentence has been commuted by a royal pardon under Article 42 of the Federal Constitution can no longer seek review, and that the Pardons Board's decision is not justiciable.

This Federal Court decision forms part of a set of review applications heard together, in which the Public Prosecutor (Pendakwa Raya), invoking rule 137 of the Rules of the Federal Court 1995, sought to review the court's earlier majority decision of 27 August 2024 that had allowed a foreign national under sentence of death to apply for review of that sentence 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 respondent to this application had, before the earlier review, already been granted a royal pardon under Article 42 of the Federal Constitution, so that the death sentence had been commuted. The controlling issue was whether a prisoner whose sentence had been altered by the exercise of the prerogative of mercy could nonetheless invoke the court's temporary review jurisdiction under Act 847. Construing section 2(1) and section 3(1) of Act 847 literally, the court held that the review avenue is available to a person sentenced to death, and that a prisoner whose sentence has been commuted by pardon no longer answers that description; the position would have differed only if the pardon petition had been refused, or if the pardon had itself commuted the death sentence to imprisonment for natural life in a manner leaving a reviewable sentence. It further held that a decision of the Pardons Board under Article 42 cannot be challenged or judicially reviewed, and that the court has no jurisdiction to alter it. The court therefore held the Public Prosecutor's application to have merit, set aside its earlier decision of 27 August 2024, and cancelled the consequential orders, while a supporting judgment noted that the respondent could petition the Pardons Board to revisit the commencement date of the imprisonment. The judgment defines the limits of the court's temporary sentence-review jurisdiction after a pardon.

Summary

This case was heard together with 05(RJ)-7-11/2024(W) involving the same legal issue of whether the Federal Court retains jurisdiction to review a death sentence after royal pardon has been granted. The Public Prosecutor's review application concerning Mailesi Phiri, a Zambian national convicted of a capital offence, was allowed on the same grounds as the lead case. The Federal Court held that the respondents' avenue lies in petitioning the Pardons Boards rather than seeking judicial review of already-commuted sentences.

What effect did the royal pardon have on the availability of review under Act 847?

The court held that because the death sentence had been commuted by a pardon under Article 42 of the Federal Constitution, the respondent was no longer a person sentenced to death within section 3(1) of Act 847 and could not invoke the court's temporary review jurisdiction; the outcome would have differed only if the pardon had been refused.

Could the court review the Pardons Board's decision?

No. The court held that a decision of the Pardons Board under Article 42 cannot be challenged or judicially reviewed and that the court has no jurisdiction to alter it, so it set aside its earlier decision of 27 August 2024 and cancelled the consequential orders on the Public Prosecutor's meritorious review application.

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-9-11-2024p)