[2017] 1 MLJ
A
Michael Philip Spears v Ketua Pengarah Penjara Kajang &
Anor and another appeal (Varghese George JCA)
483
Our equipollent art 5(1) of our Federal Constitution is worded in the following
manner:
(1) No person shall be deprived of his life or personal liberty save in accordance with
law.
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[36] Passages from the judgment in Shatrughan Chauhan which in our view
had relevance and force in our context too, are produced hereunder:
[71] In this batch of cases, two convict prisoners prayed for commutation of death
sentence into sentence of life imprisonment on the ground that the unconscionably
long delay in deciding the mercy petition has caused the onset of chronic psychotic
illness, and in view of this the execution of death sentence will be inhuman and against
the well-established canons of human rights.
[72] The principal question raised in those petitions is whether because of the
aforementioned supervening events after the verdict of this Court confirming the death
sentence, the infliction of the most extreme penalty in the circumstances of the case,
violates the fundamental rights under Article 21. The petitioners have made it clear that
they are not challenging the death sentence imposed by this Court. However, as on date,
they are suffering from insanity/mental illness. In this background, let us consider
whether the petitioners have made out a case for commutation to life sentence on
the ground of insanity.
[73] India is a member of the United Nations and has ratified the International
Covenant on Civil and Political Rights (ICCPR). A large number of United Nations
international documents prohibit the execution of death sentence on an insane person.
Clause 3(e) of the Resolution 2000/65 dated 27 April 2000 of the U.N.
Commission on Human Rights titled ‘The Question of Death Penalty’ urges ‘all
State that still maintain the death penalty … not to impose the death penalty on a
person suffering from any form of mental disorder or to execute any such person.
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(e) Not to impose the death penalty on a person suffering from any form of mental
disorder or to execute any such person.
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[74] Similarly, Clause 89 of the Report of the Special Rapporteur or Extra-Judicial
Summary or Arbitrary Executions published on 24 December 1996 by the UN
Commission on Human Rights under the caption ‘Restrictions on the use of death
penalty’ states that ‘the imposition of capital punishment on mentally retarded or insane
persons, pregnant women and recent mothers is prohibited’. Further, Clause 116
thereof under the caption ‘Capital punishment’ urges that ‘Governments that
enforce such legislation with respect to minors and the mentally ill are particularly
called upon to bring their domestic criminal laws into conformity with
international legal standards’.
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