[2017] 1 MLJ
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Michael Philip Spears v Ketua Pengarah Penjara Kajang &
Anor and another appeal (Varghese George JCA)
481
instructively noted in Bandar Builder Sdn Bhd & Ors v United Malayan
Banking Corporation Bhd [1993] 3 MLJ 36; [1993] 4 CLJ 7:
It is only in plain and obvious cases that recourse should be had to the summary process
under this rule … can only be adopted when it can be clearly seen that a claim or
answer is on the face of it ‘obviously unsustainable’ … It cannot be exercised by a
minute examination of the documents and facts of the case, in order to see whether the
party has a cause of action or defence … The court must be satisfied that there is no
reasonable cause of action or that the claim was frivolous or vexatious or that the
defence raised are not arguable.
[31] We agreed with counsel for the appellant that the essence of the
challenge mounted in the suit was not against the criminal process or the death
sentence passed by the court and/or the decision of the Pardon’s Board. We
were of the further view, that the complaint here was in respect of and directly
arising from the delay in carrying out the death sentence imposed on the
appellant, the inhuman and degrading treatment that he had to undergo over
sixteen odd years after conviction and more materially, the mental state and
condition that he was in presently. This was all about the treatment and rights
of a prisoner languishing on death row; such rights definitely did not end with
the affirmation of the death sentence by the Federal Court (Smt Triveniben &
Ors v State of Gujarat & Ors 1989 AIR 1335) or by the rejection by the Pardons
Board of the appellant’s plea for clemency. In other words, being on the death
row did not extinguish the appellant’s constitutional rights or remove from the
court jurisdiction to at least consider the remedy or relief applied for in the suit.
[32] The Federal Court in Lee Kwan Woh has succinctly stated how the
courts should act when called to interpret provisions of the Federal
Constitution dealing with fundamental liberties generally, and art 5 thereof in
particular. They include the following passages and we have taken the liberty to
highlight the salient observations relevant for our consideration in this case.
[8] In the second place, the Constitution is a document sui generis governed by
interpretive principles of its own. In the forefront of these is the principle that its
provisions should be interpreted generously and liberally. On no account should a
literal construction be placed on its language, particularly upon those provisions
that guarantee to individuals the protection of fundamental rights. In our view, it is
the duty of a court to adopt a prismatic approach when interpreting the fundamental
rights guaranteed under Part II of the Constitution. When light passes through a prism
it reveals its constituent colours. In the same way, the prismatic interpretive approach
will reveal to the court the rights submerged in the concepts employed by the several
provisions under Part II. Indeed the prismatic interpretation of the Constitution gives life
to abstract concepts such as ‘life’ and ‘personal liberty’ in art 5(1). There are several
authorities in support of this view …
[9] The next case is Boyce v The Queen [2004] UKPC 32, where Lord Hoffman said:
Parts of the Constitution, and in particular the fundamental rights provisions of
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