JUDGMENT

Harun Hashim J:

This is an application by the defendants -

(a) To strike out the Writ and the Statement of Claim filed by the plaintiff on 2 July 1985;

(b) To revoke the stay of execution order granted by this Court on 2 July 1985.

The plaintiff was tried and convicted for possession of a firearm and ammunition without lawful authority under s. 57(1) of the Internal Security Act 1960 and sentenced to death by the High Court at Kuala Lumpur on 14 June 1983. He appealed to the Federal Court but his appeal was dismissed on 26 October 1983 and the death sentence was confirmed. On 26 February 1985 the Pardons Board considered his case and advised that the sentence of death be carried out. On 20 April 1985 His Majesty the Yang di-Pertuan Agong held that in his judgment it is expedient that the death sentence be carried out and ordered execution in the Prison at Pudu in Kuala Lumpur. On 14 June 1985 the High Court at Kuala Lumpur issued the warrant of execution on a sentence of death be carried out on 3 July 1985.

On 2 July 1985 the plaintiff took out a Writ of Summons for the following orders -

1. A Declaration that the Pardons Board has violated Article 8 of the Federal Constitution in failing to exercise impartiality and uniformity in its decisions.

2. A Declaration that the decision not to pardon the plaintiff by the Second defendant while pardoning Dato Mokhtar Hashim is an exercise of prejudice in favour of Dato Mokhtar Hashim and against the plaintiff, when plaintiff's case is lighter than Mokhtar Hashim's case.

3. A stay of execution of the plaintiff pending finalisation of the proceedings herein.

4. Any other or further relief deemed fit and proper by the Honourable Court.

He also filed an ex parte application for stay of execution pending the finalisation of these proceedings. I granted the stay as the plaintiff had invoked Article 8 of the Federal Constitution: see s. 1 of the Schedule to the Federal Constitution. In any event failure to grant a stay only hours before the execution was due would have caused irreparable damage.

The grounds for this application are -

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.

It is argued on behalf of the plaintiff that constitutional issues have been raised on the face of the pleadings which ought to be tried. As a general rule the Court will not strike out a Writ if there are triable issues. In the instant case, the only real complaint of the plaintiff is that the Pardons Board did not commute his death sentence to imprisonment whereas in the case of Dato Mokhtar b. Hashim [1983] 1 MLRA 7, [1983] 2 MLJ 232; [1983] CLJ (Rep) 101 who was convicted on a charge of murder, the death sentence was commuted to life imprisonment. It is contended that the plaintiff is more deserving of mercy as he had not killed anyone.

It is submitted that as the decision not to commute the death sentence was made under Article 42 of the Federal Constitution, it is open to judicial review. That may be so. In G. Krishta Goud & J. Boomaiah v. State of Andhra Pradesh & Ors. [1976] 1 SCC 157, the Indian Supreme Court in considering Article 72 of the Indian Constitution (which is inpari materia with Article 42 of the Federal Constitution) said at p. 160:

that the question of justiciability on the Court's review of Presidential exercise of commutation or respite power has not been affirmed or negatived.

In the Council of Civil Service Unions & Others v. Minister for the Civil Service [1984] 3 All ER 935, the House of Lords held that the decision of t