Jabar v Public Prosecutor
[1995] SGCA 18

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Suit No:    CA 186/1994
Decision Date:    24 Feb 1995
Court:    Court of Appeal
Coram:    Karthigesu JA, L P Thean JA, Yong Pung How CJ
Counsel:    SK Kumar (SK Kumar & Associates) for the appellant, Christine Lee (Deputy Public Prosecutor) for the respondent

Unreported Judgments

On 11 May 1989, the appellant was convicted in the High Court with two others, Kumar a/l Nadison and Chandran a/l Gangatharan, on a joint charge of committing the murder of one Samynathan Pawathai @ Chelia Dorai on 28 April 1985, whilst being members of a common assembly, contrary to s 149 of the Penal Code (Cap 224) and punishable under s 302 of the Penal Code [CC 13/86]. They were sentenced to death. Their appeals against conviction (vide Crim App 9/89) were dismissed by the Court of Criminal Appeal on 25 April 1991.

On the eve of the scheduled date of execution on 11 November 1994, the appellant filed an ex parte originating summons seeking a stay of execution of the death sentence and a declaration that it would be unconstitutional and unlawful to execute the appellant, in view of the time period which had elapsed since his conviction.

The urgent application was heard on the same day by Kan Ting Chiu J. Having heard submissions from both counsel for the appellant and the Public Prosecutor, he dismissed the application. Following the dismissal of the application in the High Court, the appellant sought a respite of the execution from the President. A respite of the warrant of execution was allowed pending the filing of an appeal against the decision of the High Court. The notice of appeal to this court was filed on 2 December 1994. On 16 December 1994, the Public Prosecutor obtained leave to expedite the hearing of this appeal.

Having heard the appeal, we were of the unanimous view that it had no merit and we accordingly dismissed it. We now give our reasons.

The chronology of events

We noted that in the court below the chain of events was not fully disclosed. We now set them out in full:

(28) April 1985: Offence committed.

(29) April 1985: Appellant and two co-accused arrested.

(31) October 1988: Trial commenced in the High Court.

(3) December 1988: Trial concluded. Judgment reserved.

(11) May 1988: Judgment delivered. Appellant and two co-accused convicted.

(25) April 1991: Appeals dismissed by the Court of Criminal Appeal.

(17) July 1991: The appellant`s solicitors, SK Kumar & Associates, are notified of the appellant`s right to file a petition for clemency, to be submitted by 16 October 1991.

(24) July 1991: Tan Rajah & Cheah, the solicitors for the second accused (Kumar a/l Nadison), request the prison authorities to defer execution pending the consideration of an appeal to the Privy Council.

(29) July 1991: A petition for clemency with respect of the appellant and the first accused (Chandran a/l Gangatharan), is presented to the President by Yohevel & Co, a Malaysian firm of solicitors, on behalf of the appellant`s sister and the parents of Chandran.

(3) February 1992: Tan Rajah & Cheah are asked to submit the petition for Kumar.

(3) June 1992: The Court of Criminal Appeal`s grounds of judgment are delivered.

(5) June 1992: Tan Rajah & Cheah asked by the prison authorities about the status of the matter.

(22) July 1992: Tan Rajah & Cheah given final notice to submit the petition by 19 August 1992.

(8) August 1992: The petition for the appellant had yet to be submitted by SK Kumar & Associates. The prison authorities notify them to submit it by 22 August 1992.

(5) September 1992: SK Kumar & Associates notified that action would be initiated with respect to the execution.

(8) October 1992: Tan Rajah & Cheah again asked about the status of the matter.

(10) November 1992: The appellant notified by the prison authorities that his solicitors have not responded. The appellant asks for time to consult his family. The appellant given until 30 November 1992 to file the petition.

(30) November 1992: Deadline for submitting the petition for the appellant expires. The prison authorities offer to prepare a petition on the appellant`s behalf. The appellant rejects the offer and asks to see his solicitor.

(29) December 1992: The prison authorities seek clarification of the matter from SK Kumar & Associates.

(20) January 1993: The prison authorities inform SK Kumar & Associates of a final extension of the dateline to 27 January 1993.

(26) March 1993: The Registrar of the Supreme Court requests SK Kumar & Associates to resolve the matter by meeting the appellant.

(29) March 1993: The prison authorities give SK Kumar & Associates a further extension of the dateline to file the petition, to 12 April 1993.

(8) April 1993: The Registrar of the Supreme Court requests SK Kumar & Associates to take action on the petition and notifies them that, if they do not want to see the appellant, the Supreme Court would consider assigning a counsel if the appellant requests.

(10) April 1993: SK Kumar & Associates inform the registrar that they would make arrangements to see the appellant. Also notify the registrar that they did not have the relevant papers to prepare the petition and raise a query as to the necessity of filing another petition in light of the joint petition having been filed earlier.

(12) May 1993: Tan Rajah & Cheah given a final three months extension to submit the petition on behalf of Kumar (by 11 August 1993).

(14) May 1993: The prison authorities request SK Kumar & Associates to urgently submit the petition.

(27) July 1993: The petition for clemency finally filed on behalf of the appellant by SK Kumar & Associates.

(8) March 1994: The second accused informs the prison authorities that he does not wish to submit a petition.

(7) June 1994: The petition for clemency of the appellant is rejected. Execution scheduled for 17 June 1994.

(15) June 1994: The appellant`s family visits him and is told that Kumar is willing to affirm an affidavit that he was solely responsible for inflicting the fatal wounds and not the appellant.

(16) June 1994: SK Kumar & Associates seek a stay of execution from the President, based upon this development. The President orders a respite of the execution and requests SK Kumar & Associates to submit a further petition for clemency within two weeks.

(29) July 1994: Dateline for filing expired. The prison authorities request SK Kumar & Associates to file the petition by 3 August 1994.

(3) August 1994: Further extension given for filing of petition to 29 August 1994.

(27) August 1994: Further petition for clemency presented.

(25) October 1994: The further petition for clemency is rejected by the President. Execution scheduled for 11 November 1994.

(4) November 1994: SK Kumar & Associates seek another stay of execution from the President.

(8) November 1994: Request for a stay rejected by the President.

(10) November 1994: Appellant files OS 1101/94. Application dismissed by Kan Ting Chiu J. SK Kumar & Associates seek a second respite from the President. Respite granted by the President.

The application in the High Court

At the date of filing of the originating summons, the appellant had been on death-row for about five years and six months from the date he was convicted in the High Court and three years and six months since the dismissal of his appeal against conviction.

It was argued in the court below that the period of five years and six months from the date of conviction amounted to a prolonged delay, and that it would be cruel and inhuman punishment to carry out the execution now. It was contended that, if the death sentence was carried out, art 9(1) of the Constitution would be breached:

No person shall be deprived of his life or personal liberty save in accordance with law.

Counsel argued that the execution of the sentence of death must be `in accordance with the law` and this entailed a right not to be subjected to a prolonged period of imprisonment. He relied on the recent ruling of the Privy Council in , where a judicial committee of seven Law Lords allowed an appeal by two prisoners under sentence of death since 1979 for a declaration that it would be inhuman or degrading punishment and treatment to carry out the execution of the sentence. The Privy Council commuted the death sentences imposed on the appellants to that of life imprisonment.

The facts of were as follows. The two appellants were arrested for a murder committed in October 1977 and were convicted and sentenced to death in January 1979. The appellants applied for leave to appeal to the Court of Appeal of Jamaica within three days of their conviction but the application was only heard and dismissed in December 1980. This delay was apparently due to a delay in obtaining legal aid. The appellants then sought to appeal to the Privy Council but the reasons for the dismissal of leave by the Court of Appeal were only given almost four years later in September 1984. This was apparently the result of the files of the case being misplaced and the case being inadvertently forgotten.

Under the Jamaican (Constitution) Order in Council 1962, when an appeal against conviction in a capital case is dismissed, the Governor General is obliged to refer the case to the Jamaican Privy Council (the JPC), so that the JPC can advise him whether or not the appellants ought to be executed or be granted a commutation of sentence. No such reference was made when leave to appeal was not given. Evidence was given that, in practice, a reference to the Governor General and the JPC was not made until an appeal to the Privy Council, if made, was decided.

In the meantime, in June 1981, Pratt, the first appellant, petitioned the Inter-American Commission on Human Rights (the IACHR), on the basis that his trial was unfair. It was only in October 1984 that the IACHR dismissed his petition but recommended that the sentence be commuted on humanitarian grounds. Further representations were made by Pratt to the IACHR. Pratt also petitioned the United Nations Human Rights Committee (the UNHRC) under the International Covenant on Civil and Political Rights in January 1986.

Although the reasons of the Court of Appeal were given in September 1984, it was not until March 1986 that the appellants lodged a notice of intention to petition for special leave to appeal to the Privy Council. This application was heard and refused by the Privy Council in July 1986. At about the same time, the UNHRC requested Jamaica not to execute the appellants until it had considered whether the petition of the appellants was admissible. As a result of this request, the case finally came before the JPC for the first time in November 1986. They refused to accede to the request of the UNHRC and issued a warrant for execution on 24 February 1987. On the eve of the scheduled execution, the Governor General issued a stay of execution pending the consideration of the case by the IACHR and the UNHRC in March 1987.

In July 1987, after further submissions, the IACHR ruled that the delay of the Court of Appeal in issuing its reasons amounted to `cruel, inhuman and degrading treatment,` in violation of the American Convention of Human Rights, and requested the commutation of sentence for humanitarian reasons. The JPC reconsidered the case but rejected the IACHR`s request and issued a second warrant for execution on 1 March 1988. On 29 February 1988, the Governor-General again issued a stay of execution, apparently due to another request by the UNHRC.

The UNHRC finally decided in March 1988 that the appellant`s case was admissible and requested Jamaica not to carry out execution until they had reviewed the merits of the case. In April 1989, the UNHRC delivered its decision on the merits and recommended the commutation of the sentences. It held that the failure of the Court of Appeal to deliver its reasons for 45 months amounted to a violation of art 14 para 3(c) and art 14 para 5 of the International Convention on Civil and Political Rights with Optional Protocol:

3 In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality ...

(c) to be tried without undue delay

5 Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

However, as was subsequently pointed out by Lord Griffiths in his opinion, it appeared that the two Human Rights bodies misunderstood the procedure for applying for special leave to appeal to the Privy Council. Although the reasons of the Court of Appeal were necessary for the purpose of identifying the points of law in contention, it was not a condition precedent to the lodging of an application.

The UNHRC also held that the delay in notifying the appellants of the stay of execution on February 1987 until some 45 minutes before the scheduled time of execution was in violation of art 7 of the International Convention on Civil and Political Rights with Optional Protocol:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

In any event, it was only in September 1990 that the JPC rejected the UNHRC findings. In February 1991, a third warrant for execution was issued for execution on 7 March 1991. Subsequently, the appellants applied under s 25 of the Constitution of Jamaica to the Supreme Court, which empowered the Supreme Court to provide redress for an alleged contravention of the Constitution, alleging that to hang them after so many years in prison would be inhuman and in breach of s 17 of the Constitution:

(1) No person shall be subjected to torture or to inhuman or degrading punishment or other treatment.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question authorises the infliction of any description of punishment which was lawful in Jamaica immediately before the appointed date.

The Supreme Court of Jamaica dismissed the application in June 1991. In June 1992, the appeal to the Court of Appeal was also dismissed. The matter finally came before the Privy Council in June 1993.

In determining the issues, the Privy Council was confronted with the majority opinion in . In Riley , the appellants were convicted of murder and sentenced to death on various dates between March 1975 and March 1976. Their appeals were dismissed in the period between February 1976 and January 1977. Between April 1976 and January 1979, a political controversy arose with respect to the retention of the death penalty in Jamaica and, as a result, the execution of death sentences was suspended. The matter was resolved when the Jamaican House of Representatives voted to retain it and, in May and June 1979, warrants for execution of the appellants were issued. The appellants applied to the Jamaican Supreme Court for a declaration that prolonged delay of their execution infringed their rights under s 17(1) of the Jamaican Constitution.

The Jamaican Supreme Court dismissed the application and this was upheld by the Jamaican Court of Appeal. The Privy Council, by a majority, held that s 17(2) of the Constitution of Jamaica (supra) authorized execution by hanging irrespective of how long the delay was between the passing of sentence and its execution. The majority were of the view that the legality of a delayed execution cannot be questioned.

Lord Scarman and Lord Brightman dissented. They held that s 17(2) served only to legalize certain descriptions of punishment and not to legalize an `inhuman treatment.` In their dissenting judgment, they concluded at p 736:

Prolonged delay when it arises from factors outside the control of the condemned man can render a decision to carry out the sentence of death an inhuman and degrading punishment. It is, of course, for the applicant for constitutional protection to show that the delay was inordinate, arose from no act of his, and was likely to cause such acute suffering that the infliction of the death penalty would be in the circumstances which had arisen inhuman or degrading.

This minority view of Lord Scarman and Brightman was preferred by the Privy Council in . Lord Griffiths, in delivering the unanimous opinion of the Board, held that s 17(2) was confined to authorizing descriptions of punishment of which the court may pass sentence and did not prevent the appellants from arguing that the circumstances in which their sentences of death were to be carried out were unconstitutional. It was accepted that a prolonged delay could constitute `inhuman and degrading treatment` contrary to s 17(1).

At p 783, it was stated by Lord Griffiths:

There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years. What gives rise to this instinctive revulsion? The answer can only be our humanity: we regard it as an inhuman act to keep a man facing the agony of execution over a long extended period of time. But before their Lordships condemn the act of execution as `inhuman or degrading punishment or other treatment` within the meaning of s 17(1) there are a number of factors that have to be balanced in weighing the delay. If delay is due entirely to the fault of the accused such as an escape from custody or frivolous and time wasting resort to legal procedures which amount to an abuse of process the accused cannot be allowed to take advantage of that delay for to do so would be to permit the accused to use illegitimate means to escape the punishment inflicted upon him in the interest of protecting society against crime.

A much more difficult question is whether the delay occasioned by the legitimate resort of the accused to all available appellate procedures should be taken into account, or whether it is only delay that can be attributed to the shortcomings of the State that should be taken into account.

After considering various authorities from different jurisdictions, he concluded at p 786:

In their Lordships` view a state that wishes to retain capital punishment must accept the responsibility of ensuring that execution follows as swiftly as practicable after sentence, allowing a reasonable time for appeal and consideration of reprieve. It is part of the human condition that a condemned man will take every opportunity to save his life through use of the appellate procedure. If the appellate procedure enables the prisoner to prolong the appellate hearings over a period of years, the fault is to be attributed to the appellate system that permits such delay and not to the prisoner who takes advantage of it. Appellate procedures that echo down the years are not compatible with capital punishment. The death row phenomenon must not become established as a part of our jurisprudence.

It was striking in that by the time the matter came before the Privy Council, the appellants had been in death row for some 14 years. At the conclusion of his opinion, Lord Griffiths said at p 788:

These considerations lead their Lordships to the conclusion that in any case in which execution is to take place more than five years after sentence there will be strong grounds for believing that the delay is such as to constitute `inhuman or degrading punishment or other treatment.

The Privy Council interpreted s 25(2) of the Jamaican Constitution (infra) as enabling their Lordships to substitute for the death sentence such order as it considers appropriate. As a result, a commutation of the death sentence to a sentence of life imprisonment was ordered. Section 25(2) of the Constitution of Jamaica reads:

The Supreme Court shall have original jurisdiction to hear and determine any application made by any person in pursuance of subsection (1) of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of the said sections 14 to 24 (inclusive) to the protection of which the person concerned is entitled.

In reliance on the above decision, counsel for the appellant here submitted before the learned judge that the execution ought to be stayed and the sentence of death be commuted to life imprisonment.

Findings of the High Court

In his grounds of judgment, the learned judge was of the view that the opinion of the Privy Council in and the minority view in were not applicable as there was no equivalent of s 17(1) of the Jamaican Constitution prohibiting `inhuman or degrading treatment` in the Constitution of Singapore. However, he noted that similar objections had arisen in India and he embarked on a consideration of the Indian Supreme Court decisions in and . The relevant provision in the Indian Constitution which was alleged to have been contravened as a result of a prolonged delay in execution was art 21, which the learned judge held was in pari materia with art 9(1) here:

No person shall be deprived of his life or personal liberty except according to procedure established by law.

Having considered the Indian cases, the learned judge concluded that art 9(1) similarly required that all substantive and procedural laws be complied with throughout the whole process from the investigation, arrest, trial, appeal and up to the execution of the sentence. On this basis, he held that the enforcement of the punishment must also be rendered according to law. In principle, the learned judge accepted that a prolonged and unreasonable delay in complying with laws governing the punishment of convicted persons may be in breach of art 9(1). However, he held that any delay which was caused by the convicted person must be taken into account in determining whether there was any undue delay.

The learned judge reviewed the facts and noted that the appellant had contributed to the delay by the time he took to file his petition and his further petition for clemency. He noted that the appellant`s solicitors were notified on 17 June 1991 to file the petition and that it was only filed more than two years later, on 13 July 1993. He also pointed out that there was a second delay in filing the further petition. He noted that counsel for the appellant had only referred to the fact that five years had elapsed since his conviction and had not shown that there had been a delay of such magnitude and culpability on the part of the State as to amount to a non-compliance with the law. He declined to apply the five-year period used in Pratt , or for that matter, any fixed period.

The appeal

In the appeal, counsel for the appellant, Mr SK Kumar, put forward the following arguments. He pointed out that it was only on 9 June 1994 that the President gave his decision in rejecting the petition for clemency filed by the appellant`s sister on 29 July 1991. He contended that this delay of two years and ten months was unjustified, and that it amounted to a breach of the appellant`s constitutional rights under art 9(1). Mr Kumar submitted that the learned judge had erred in refusing a stay of execution and in not granting the declaration.

The issues raised in the appeal by counsel were wholly different from that pursued in the court below. It was clear from the notes of evidence that the basis of the application there was with respect to the delay of more than five years in carrying out the execution. All of these were not argued before us. Instead, the appellant sought to argue his case on the basis of an alleged delay on the part of the President in responding to the petition filed.

Mr Kumar relied on the decision of a five-judge Indian Supreme Court bench in , a case not previously cited in the court below. The Supreme Court in that case accepted that a long and undue delay in the execution of sentence of death could amount to a breach of the condemned person`s constitutional rights under art 21. It was, however, held there that the court would only examine the nature of the delay caused and circumstances which occurred after the confirmation by the judicial process of the sentence of death. Oza J, in delivering the majority opinion of four of the judges, held at p 528:

... ordinarily, it is expected that even in this court the matters where the capital punishment is involved will be given top priority and shall be heard of and disposed of as expeditiously as possible but it could not be doubted that so long as the matter is pending in any court before final adjudication, even the person who has been condemned or who has been sentenced to death has a ray of hope. It, therefore, could not be contended that he suffers that mental torture which a person suffers when he knows that he is to be hanged but waits for the Doomsday. The delay, therefore, which could be considered while considering the question of commutation of sentence of death into one of life imprisonment could only be from the date the judgment by the apex court is pronounced, ie when the judicial process has come to an end.

In this respect, the court was unanimous in overruling Vatheeswaran , a decision of a two-judge Supreme Court in an appeal against sentence by a prisoner already in custody for some ten years. In Vatheeswaran , Chinnappa Reddy J considered the decision in Riley and the provisions of art 21 with respect to prolonged delay. He held at p 353:

While we entirely agree with Lord Scarman and Lord Brightman about the dehumanizing effect of prolonged delay after the sentence of death, we enter a little caveat, but only that we may go further. We think that the cause of the delay is immaterial when the sentence is death. Be the cause for the delay, the time necessary for appeal and consideration of reprieve or some other cause for which the accused himself may be responsible, it would not alter the dehumanizing character of the delay.

What are the constitutional implications of the dehumanizing factor of prolonged delay in the execution of a sentence of death? Let us turn at once to art 21 of the Constitution, for, it is to that article that we must first look for protection whenever life or liberty is threatened.

At p 359, the learned judge proceeded to hold:

The fiat of art 21, as explained, is that any procedure which deprives a person of his life or liberty must be just, fair and reasonable. Just, fair and reasonable procedure implies a right to free legal services where he cannot avail them. It implies a right to a speedy trial. It implies humane conditions of detention, preventive or punitive. `Procedure established by law` does not end with the pronouncement of sentence; it includes the carrying out of sentence. That is as far as we have gone so far. It seems to us but a short step, but a step in the right direction, to hold that prolonged detention to await the execution of a sentence of death is an unjust, unfair and unreasonable procedure and the only way to undo the wrong is to quash the sentence of death.

Significantly, Reddy J concluded that:

Making all reasonable allowance for the time necessary for appeal and consideration of reprieve, we think that delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke art 21 and demand the quashing of the sentence of death.

Shortly after the delivery of judgment in Vatheeswaran , a three-judge bench of the Supreme Court reconsidered the issue in . Two condemned prisoners on death-row for more than two years, filed a writ petition seeking a commutation of the death sentence on the basis of . The Supreme Court there accepted in principle that prolonged delay would amount to a breach of art 21. Chandrachud CJ held at p 591:

... we too consider that the view expressed in this behalf by Lord Scarman and Lord Brightman in the Privy Council decision of is, with respect, correct. The majority in that case did not pronounce upon this matter. The minority expressed the opinion that the jurisprudence of the civilized world has recognized and acknowledged that prolonged delay in executing a sentence of death can make the punishment when it comes inhuman and degrading: Sentence of death is one thing; sentence of death followed by lengthy imprisonment prior to execution is another. The prolonged anguish of alternating hope and despair, the agony of uncertainty, the consequences of such suffering on the mental emotional, and physical integrity and health of the individual can render the decision to execute the sentence of death an inhuman and degrading punishment in circumstances of a given case.

And at p 593, it was stated:

A prisoner who has experienced living death for years on end is therefore entitled to invoke the jurisdiction of this court for examining the question whether, after all the agony and torment he has been subjected to, it is just and fair to allow the sentence of death to be executed. That is the true implication of art 21 of the Constitution and, to that extent, we express our broad and respectful agreement with our learned brethren in their visualisation of the meaning of that article. The horizons of art 21 are ever widening and the final word on its conspectus shall never have been said. So long as life lasts, so long shall it be the duty and endeavour of this court to give to the provisions of our Constitution a meaning which will prevent human suffering and degradation. Therefore, art 21 is as much relevant at the stage of execution of the death sentence as it is in the interregnum between the imposition of that sentence and its execution. The essence of the matter is that all procedure, no matter what the stage, must be fair, just and reasonable. It is well-established that a prisoner cannot be tortured or subjected to unfair or inhuman treatment. (See , and ). It is a logical extension of the selfsame principle that the death sentence, even if justifiably imposed, cannot be executed if supervening events make its execution harsh, unjust or unfair. Article 21 stands like a sentinel over human misery, degradation and oppression. Its voice is the voice of justice and fair play. That voice can never be silenced on the ground that the time to heed to its imperatives is long since past in the story of a trial. It reverberates through all stages - the trial, the sentence, the incarceration and finally, the execution of the sentence.

However, the Supreme Court there disagreed with the time period of two years fixed in 3:

Prolonged delay in the execution of a death sentence is unquestionably an important consideration for determining whether the sentence should be allowed to be executed. But, according to us, no hard and fast rule can be laid down as our learned brethren have done that `delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke art 21 and demand the quashing of the sentence of death.` This period of two years purports to have been fixed in after making `all reasonable allowance for the time necessary for appeal and consideration of reprieve.` With great respect, we find it impossible to agree with this part of the judgment.


The substitution of the death sentence by a sentence of life imprisonment cannot follow by the application of the two years` formula as a matter of .

Chandrachud CJ considered that it was relevant to ascertain the cause of the delay and to consider whether the delay in the execution of the death sentence was due to the fact that the prisoner has resorted to

Coming back to Smt Triveniben , in the other judgment delivered, Sheety J accepted that the time spent in judicial proceedings was intended to ensure a fair trial for the accused and could be used to impeach the execution of the death sentence. He held at p 549:

If the delay in passing the sentence render the execution unconstitutional, the delay subsequent thereof cannot also render it unconstitutional. Much less any fixed period of delay could be held to make the sentence inexecutable. It would be arbitrary to fix any period of limitation for execution on the ground that it would be a denial of fairness in procedure under art 21. With respect, I am unable to agree with the view taken in Vatheeswaran case on this aspect.

As a result, the Supreme Court there held that the only delay which would be material for consideration would be the delays in disposal of the mercy petition or delays occurring at the instance of the executive. On this, Shetty J remarked at p 549:

The time taken by the executive for disposal of mercy petitions may depend upon the nature of the case and the scope of enquiry to be made. It may also depend upon the number of mercy petitions submitted by or on behalf of the accused. The court, therefore, cannot prescribe a time limit for disposal of even mercy petitions.

Shetty J concluded at p 550:

The court may only consider whether there was undue long delay in disposing of mercy petition; whether the State was guilty of dilatory conduct and whether the delay was for no reason at all. The inordinate delay may be a significant factor, but that by itself cannot render the execution unconstitutional. Nor can it be divorced from the dastardly and diabolical circumstances of the crime itself.

The above proposition constituted the basis of the appellant`s claim in the appeal. In support, counsel also referred us to two recent Indian decisions where the death sentence was commuted on the basis of a delay of over two years on the part of the executive in disposing of the mercy petitions ( and ).

With respect, we do not consider these Indian authorities to be relevant here. We are mindful of one material difference between Indian criminal procedure and that in Singapore. In India, the death penalty is provided in some six offences in the Indian Penal Code but, in neither of these, is it mandatory. The discretion of passing the death sentence lies with the sentencing court. Under s 354(3) of the Indian Criminal Procedure Code, the sentencing court is under a duty to give special reasons for awarding death sentences. The death sentence passed by the Sessions Court is not final unless confirmed by the High Court (s 366 of the Indian Criminal Procedure Code). In consequence, the intention of the legislature was clearly to make life imprisonment the general rule and the death sentence an exception to be resorted to for such special reasons (see the judgment of Krishna Iyer J in at p 804 and the judgment of Oza J in Smt Triveniben at pp 524-5). This intention has been consistently applied by the courts. Influenced by these considerations, an appellate court would readily take notice of any delay in the judicial process and make an order of commutation of the sentence to life imprisonment (see again the judgment of Oza J in Smt Triveniben at p 527 and the judgment of Reddy J in Vatheeswaran at p 351). In Singapore, the position is, of course, markedly different. Capital cases carry a mandatory death penalty.

We accept that condemned prisoners on death-row should not be subjected to a prolonged period of imprisonment. We do not doubt that they suffer a certain level of anguish and mental agony whilst awaiting execution. However, such anguish is an inevitable consequence which, in our view, does not amount to a contravention of the constitutional rights of the prisoner.

The position in India is that the courts have a jurisdiction to consider whether subsequent events after the judicial process has ended amount to an infringement of his constitutional rights. However, a similar position does not exist here.

The respondent submitted that, contrary to the finding of the learned judge in the court below, the provisions of art 21 in the Indian Constitution differ from art 9(1). The learned DPP drew the distinction between the words `save in accordance with law` in art 9(1) and `except according to procedure established by law` in art 21. She pointed out that in Vatheeswaran , Reddy J relied upon the construction given to these words in the Indian Supreme Court decision in , to establish the contention that a person may only be deprived of his life or personal liberty in accordance with `fair, just and reasonable` procedure established by valid law. It was affirmed in Maneka Gandhi that the rights as guaranteed under the Indian Constitution overlapped. As a result, `procedure` under art 21 was held to be subject to the principle of equality under art 14 there (our art 12(1)). It was therefore held that such `procedure` must be fair, just and reasonable and not fanciful, oppressive or arbitrary.

The learned DPP cited two decisions of the Malaysian Federal Court in support of her argument. In , the appellant had sought an order that a writ of habeus corpus be issued. At p 150, Suffian FJ said:

Our law is quite different from that of India. First, as already stated, the power of detention is here given to the highest authority in the land, acting on the advice of minister responsible to and accountable in Parliament, not to mere officials. Secondly, as already stated, here detention, in order to be lawful, must be in accordance with the law, not as in India where it must be in accordance with procedure established by law.

The above statement was subsequently followed in .

The learned DPP submitted that art 21 provided for both the legality of imposing the sentence of death and the legality of the procedure for carrying out the sentence of death, whereas art 9(1) only provided for the legality for imposing the sentence of death. On this basis, it was argued that the court did not have jurisdiction over the question whether a prolonged delay amounted to `cruel and inhuman treatment` and whether such `cruel and inhuman treatment` is `in accordance with law` under art 9(1).

We respectfully agree that art 9(1) is different from art 21 in India. Any law which provides for the deprivation of a person`s life or personal liberty, is valid and binding so long as it is validly passed by Parliament. The court is not concerned with whether it is also fair, just and reasonable as well. However, we do not see how this distinction gives rise to the contentions as submitted by the learned DPP above.

Instead, we prefer to consider the issue from the perspective of whether the court has the power to interfere under such circumstances. The appeal here is not concerned with the merits of the conviction or the dismissal of the appeal. No such challenge can be made as the court is functus officio in this respect. The learned judge in the court below held that the High Court was not possessed of power to order a stay of execution of the sentence of death. His reasons were based on three separate grounds.

The first was that the High Court is only empowered to grant stays of execution of its orders and judgments and those of subordinate courts and other tribunals where conferred by statute or by the rules of court. The learned judge held that the High Court was not vested with the power to stay an order of execution of the sentence of death made by the President as such power is only vested in the President.

Secondly, the learned judge took the point that the application as made seemed to imply that it was for an order of certiorari to quash proceedings but it was not specified which proceedings were sought to be quashed. He noted that if it was with respect to the order of the Court of Criminal Appeal dismissing the appeal against conviction, the High Court had no power to quash the order of the Court of Criminal Appeal and if it was against the President`s order to execute, ` that order was not susceptible to be quashed by an order of certiorari. `

Finally, the learned judge considered the application as an attempt to restrain the government from proceeding with the execution and he held that proviso (a) to s 27(1) of the Government Proceedings Act (Cap 121) limited his power to order such a stay of execution:

where in any proceedings against the Government any such relief is sought as might in proceedings between private persons be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties.

On the last reason proffered by the learned judge, we feel that, in the absence of fuller submissions, we would not wish to express any opinion on the application of s 27 of the Government Proceedings Act here.

We are, however, of the view that once sentence is passed and the judicial process is concluded, the jurisdiction of the court ends. Once the Court of Appeal has disposed of the appeal against conviction and has confirmed the sentence of death, it is functus officio as far as the execution of the sentence is concerned. It is not possessed of power to order that the sentence of death be stayed or commuted to a sentence of life imprisonment, especially when the appellant was convicted of an offence which carried a mandatory sentence of death. The power of commutation or remittance of sentence lies only with the President, under s 8 of the Republic of Singapore Independence Act:

(1) The President, as occasion shall arise, may, on the advice of the Cabinet -

(a) grant a pardon to any accomplice in any offence who gives information which leads to the conviction of the principal offender or any one of the principal offenders, if more than one;

(b) grant to the offender convicted of any offence in any court in Singapore, a pardon, free or subject to lawful conditions, or any reprieve or respite, either indefinite or for such period as the President may think fit, of the execution of any sentence pronounced on such offender; or

(c) remit the whole or any part of such sentence or of any penalty or forfeiture.

Likewise, the power to order a stay of execution or respite of the sentence lies exclusively with the President. It is solely the prerogative of the President, to decide whether a delay in execution amounts to sufficient ground to justify a commutation of sentence. It is clearly not part of the court`s functions. It was on this ground alone that we dismissed the appeal.

In the Indian cases, the purported exercise of the powers of commutation flowed from the fact that the death penalty was an alternative sentence. In , the Privy Council had adopted a broad interpretation of s 25(2) of the Jamaican Constitution in concluding that they had the power to order a commutation of sentence.

In conclusion, we feel that we should offer our views on the points raised in that a prolonged delay in the execution of sentence constitutes inhuman punishment and that the period of time taken in the judicial process must also be taken into account.

In this respect, we would prefer to accept the views of the United States Court of Appeals, Ninth Circuit, in , which was referred to in . The appellant there was convicted of first-degree murder and contended, inter alia, that his 16 years on death row was an infringement of his rights under the Eight and Fourteenth Amendments to the Constitution of the United States, as being cruel and unusual punishment. O`Scannlain, Circuit Judge, in delivering the judgment of the court, held that the accumulation of time spent on death row did not constitute an independent infringement of the appellant`s constitutional rights. At pp 1491-2, it was held:

A defendant must not be penalized for pursuing his constitutional rights, but he also should not be able to benefit from the ultimately unsuccessful pursuit of those rights. It would indeed be a mockery of justice if the delay incurred during the prosecution of claims that fail on the merits could itself accrue into a substantive claim to the very relief that had been sought and properly denied in the first place. If that were the law, death-row inmates would be able to avoid their sentences simply by delaying proceedings beyond some threshold amount of time, while other death-row inmates - less successful in their attempts to delay - would be forced to face their sentences. Such differential treatment would be far more `arbitrary and unfair` and `cruel and unusual` than the current system of fulfilling sentences when the last in the line of appeals fails on the merits.

The prisoner can always avail himself of the procedure of petitioning the President for clemency. This petition should be filed within a reasonable period of time. On the facts of the case here, there can be no dispute that the delay was attributable in a large measure to the appellant`s solicitors` failure to file the petition expeditiously and also in light of the second accused`s desire to appeal to the Privy Council. After they were informed to do so, notwithstanding the earlier petition filed by the appellant`s sister in July 1991, the appellant`s solicitors took almost two years before filing the petition on his behalf in July 1993. The petitions for clemency were only turned down in June 1994 when the second accused finally signified his intention not to file a petition. It cannot therefore be said that there had been an undue and unconscionable delay in the execution. There was no reason why the appellant`s solicitors should have taken that considerable period of time in filing their petition.

Appeal dismissed.

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