Abdul Hamid Omar CJ (Malaya):

[1] This is an appeal against the decision of Harun J given at the High Court, Kuala Lumpur, ordering that the appellant's statement of claim be struck out and the order for a stay of execution be dissolved. There is also a motion for a stay of execution.

[2] The order to strike out the statement of claim and the dissolution of the order for the stay of execution were made by the learned Judge after hearing an application by the respondents/defendants, on a certificate of urgency, on grounds that:

(1) the matters raised in the said Writ and the accompanying Statement of Claim are non-justiciable and/or outside the jurisdiction of this Honourable Court;

(2) the Honourable Court has no jurisdiction to grant a stay of execution on a warrant of execution on a Sentence of Death issued against the plaintiff on 18 May 1985;

(3) the purported action of the plaintiff is misconceived in that the death sentence pronounced by the High Court and confirmed by the Federal Court is final and conclusive and cannot in any event be reversed.

[3] In his judgment the learned Judge has made a finding that there is no cause of action.

[4] At the hearing before us the appellant contended that there is disclosed from the statement of claim a triable issue and the learned Judge should not therefore have struck out the statement of claim.

[9] It is the appellant's contention that the inequality lies in the fact that while the Board commuted the death sentence of Mokhtar Hashim it did not do the same in respect of the appellant. In our view there is no merit in the contention for it is not the function of the Board to commute a death sentence. Its function is merely to tender advice.

[10] Under Article Federal Constitution, art 8, 42, 42(1) it is provided that:

(1) The Yang di-Pertuan Agong has power to grant pardons, reprieves and respites in respect of all offences which have been tried by Court-martial and all offences committed in the Federal Territory; and the Ruler or Yang di-Pertua Negeri of a State has power to grant pardons, reprieves and respites in respect of all other offences committed in his State.

[11] In the present case though the Pardons Board tendered advice to the Yang di-Pertuan Agong but clearly the Yang di-Pertuan Agong himself exercised the power in accordance with art 42(1) above read together with reg 29 of the Essential (Security Cases)(Amendment) Regulations 1975. In our view, such power is a power of high prerogative of mercy which is an executive act but by its very nature is not an act susceptible or amenable to judicial review. (See Council of Civil Service Unions and others v.