A three-man Court of Appeal has ordered the High Court to hear Michael Philip Spears’ lawsuit against the government, an unprecedented move by a convict.
Justice Varghese George, who delivered the 19-page judgment, said being on death row did not extinguish Spears’s constitutional rights or remove the court’s jurisdiction to consider the remedy he had applied for.
He said the 2009 Federal Court ruling in Lee Kwan Who -v- Public Prosecutor had succinctly stated how the courts should act when called to interpret provisions of the Federal Constitution that dealt with fundamental liberties.
“We are of the view that the court was clearly and definitely seized with the needful jurisdiction to judicially determine the issues raised by the appellant (Spears),” he said in the judgment now available at the judiciary’s website.
The oher judges on the bench were Abang Iskandar Abang Hashim and Nallini Pathmanathan.
He said Spears was suffering from a serious mental disorder and this was conceded by a government lawyer. Fresh evidence had also come from the Hospital Bahagia Medical Board that Spears had been diagnosed with schizophrenia as early as 2004.
“Therefore, a sufficiently plausible and arguable case had been made out by the appellant and he should not have been summarily denied the right to be heard fully,” Varghese said.
The High Court had, in November 2014, struck out the suit on the ground that it had no jurisdiction to deal with the matter.
The 45-year-old , who was convicted for murder in 2008, wants a declaration that his long detention and delay in carrying out the hanging was cruel, inhuman and a degrading punishment.
Spears, represented by Abdul Rashid Ismail and Azreen Ahmad Rastom, wants the capital punishment to be set aside.
He was arrested together with two others on Feb 20,1997, and later charged with three counts of murder at the Kuala Lumpur High Court.
In June 2000 the trial judge convicted them on all three charges and the Federal Court in August 2008 affirmed the sentence of Spears and another person.
The third accused was acquitted.
Spears has been in solitary confinement in the ‘bilik akhir’ (death row) since June 2000 and his execution was scheduled by the prison department in March 2014 but, for reasons unknown, it was called off.
On June 11, 2014, Spears instituted the suit against the government, claiming that his remand and detention from the date of arrest was in breach of Article 5 of the Federal Constitution.
He said it also constituted a grave injustice and denied him the right of a speedy trial and a swift execution of sentence.
He further alleged that his solitary confinement for 23 hours per day had caused him to become virtually insane and of unsound mind, and required him to undergo psychiatric treatment.