[2017] 1 MLJ A Michael Philip Spears v Ketua Pengarah Penjara Kajang & Anor and another appeal (Varghese George JCA) 479 [23] Senior federal counsel’s submissions before the court below could be summarised as follows: (a) all due process available to the appellant had been exhausted with the dismissal of the appeal by the Federal Court (Jabar); B C (b) to set aside the sentence of death and order a release of the appellant would amount to a ‘pardon’ and the court could not intervene in this exercise of the Royal prerogative of mercy under art 42 of the Federal Constitution (Chiow Thiam Guan v Superintendent of Pudu Prison & The Government of Malaysia and connected appeals [1983] 2 MLJ 116); (c) in any event, the plea for clemency had also been refused by the Pardons Board; D (d) the delay in executing the death sentence was not an infringement of any constitutional right (Jabar); and (e) the matters complained of and the relief sought by the appellant were therefore non-justiciable and the case was wholly unsustainable. E F G H I [24] It could therefore be seen that the learned judge was not called upon to consider at all or in detail the further factor of the appellant’s current mental status in coming to the decision to allow the striking out of the suit and the submissions of the learned SFC was also in the main restricted to the point that delay in carrying out the death sentence was not sufficient to justify the court’s further intervention in the matter. [25] The submission of counsel for the appellant before us, as we discerned it, was basically two fold. Firstly, it was contended that art 5(1) of the Federal Constitution — ‘No person shall be deprived of his life … save in accordance with the law’ — if interpreted generously and liberally (as it should be) would encompass humanitarian consideration and the appellant’s prolonged detention (even after the Pardons Board had refused his plea for clemency almost six years) should be held to violate the appellant’s constitutionally guaranteed personal liberties; ‘law’ there, it was contended, would encompass ‘procedural fairness’ as well (Lee Kwan Woh v Public Prosecutor [2009] 5 MLJ 301; Ong Ah Chuan v Public Prosecutor [1981] AC 648). [26] Secondly, apart from the delay in the execution of the death sentence, in this case the appellant had been diagnosed to be of unsound mind and the trend in common law countries including India, and further under international customary law, was to prohibit the carrying out of a death sentence on an ‘insane person’ (Indian Supreme Court cases Shatrughan Chauhan & Anr v Union of India & Ors [2014] 3 SCC 1; Navneet Kaur v State of NCT Delhi & Anr [2014] 7 SCC 264).