Jabar v Public Prosecutor

JudgeKarthigesu JA
Judgment Date24 February 1995
Neutral Citation[1995] SGCA 18
Date24 February 1995
Subject MatterCommutation of sentence,Whether constitutional to carry out execution after such delay,Jurisdiction of court,Death sentence,Constitutional Law,Fundamental liberties,Prolonged delay in execution of sentence,Whether Supreme Court can order stay of execution and commutation of sentence,Whether such power vested solely in the President of Singapore,Right to life and personal liberty,Forms of punishment,Republic of Singapore Independence Act s 8,Constitution of the Republic of Singapore art 9(1),Criminal Procedure and Sentencing
Docket NumberCivil Appeal No 186 of 1994
Published date19 September 2003
Defendant CounselChristine Lee (Deputy Public Prosecutor)
CourtCourt of Appeal (Singapore)
Plaintiff CounselSK Kumar (SK Kumar & Associates)

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

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