Constitutional Law 6 - Equality


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Constitutional Law 6 - Equality

  1. 1. Part IV of the Constitution
  2. 2. <ul><li>Article 11(1): </li></ul><ul><ul><li>No person shall be punished for an act or omission which was not punishable by law when it was done or made, and no person shall suffer greater punishment for an offence than was prescribed by law at the time it was omitted. </li></ul></ul>
  3. 3. <ul><li>Non-derogable rights </li></ul><ul><li>2 Limbs </li></ul><ul><li>Forbids retrospective creation of offences </li></ul><ul><li>Forbids retrospective increase of punishment for existing offences </li></ul><ul><li>Quaere: What is the operative date? </li></ul><ul><ul><li>Date of commission of offence? </li></ul></ul><ul><ul><li>Date of sentencing? </li></ul></ul>
  4. 4. <ul><li>Pending cases – no effect on rights of the accused </li></ul><ul><li>Statutes are to be read and interpreted in a manner that respects vested rights – based on presumption that legislature does not intend to alter or interefere with existing rights. </li></ul><ul><li>Common law presumption that a statute is not intended to have retrospective effect unless a clear legislative intent is shown. </li></ul>
  5. 5. <ul><li>Quaere: What is the operative date? </li></ul><ul><ul><li>Date of commission of offence? </li></ul></ul><ul><ul><li>Date of sentencing? </li></ul></ul>
  6. 6. <ul><li>Applies only to the creation of offences and NOT to changes in trial procedure. </li></ul><ul><li>Courts consistently draw a distinction and hold that Article 11(1) only protects substantive changes in the law. </li></ul><ul><li>Lim Sing Hiaw v PP (trial before single judge rather than jury) </li></ul><ul><li>Haw Tua Tau (making of unsworn statement from the dock) </li></ul><ul><li>Chan Han Mow (making non-extradictable offence extradictable) </li></ul>
  7. 7. <ul><li>Quaere: What if law is passed to remove sentencing discretion of judges (ie making a particular punishment mandatory). </li></ul><ul><li>PP v Mohamed Ismail (1984) – What is the material date for determining sentencing for offences? Edgard Joseph J: judge retained discretion on sentencing since offence was committed before the discretion was removed. </li></ul><ul><li>PP v Hun Peng Kai (1984) – Sessions Courts’ jurisdiction and discretion to impose either death penalty or life imprisonment removed. Edgar Joseph J: Amendments were not retrospective. Once an accused is charged and case fixed for hearing, the court was vested right to trial & sentencing. </li></ul>
  8. 8. <ul><li>PP v Tan Teck Hin (1992) </li></ul><ul><ul><li>5 March 1990 – Tan’s previous conviction for drink driving </li></ul></ul><ul><ul><li>2 April 1990 – Section 67(1) of Road Traffic Act amended to increase punishment for first time & repeat offenders </li></ul></ul><ul><ul><li>9 June 1991 – Accused commits offence of drink driving under section 67(1) Road Traffic Act. </li></ul></ul><ul><ul><li>28 July 1991 – Accused convicted in DC </li></ul></ul><ul><li>Harry Lee Wee v PP (1980). Amendment to section 17 of the Criminal Procedure Code – DC’s jurisdictional limit of max of $30,000 fine lifted. Choor Singh J: Punishment not affected by amendment; only DC’s powers to impose fines </li></ul>
  9. 9. <ul><li>Article 11(2) </li></ul><ul><ul><li>A person who has been convicted or acquitted of an offence shall not be tried again for the same offence except where the conviction or acquittal has been quashed and a retrial ordered by a court superior to that by which he was acquitted or convicted. </li></ul></ul><ul><li>Applies only to criminal offence. In common law, this is encapsulated in two principles: Autrefois convict & autrefois acquit </li></ul><ul><li>Criminal Procedure Code, section 239: </li></ul><ul><li>A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of that offence shall, while the conviction or acquittal remains in force, not be liable to be tried again for the same offence nor on the same facts for any other offence for which a different charge from the one made against him … </li></ul><ul><li>But a person who has been acquitted or convicted of an offence may still be ‘tried for any distinct offence for which a separate charge might be made against him.’ </li></ul>
  10. 10. <ul><li>Quaere: What amounts to ‘conviction’ or ‘acquittal’? </li></ul><ul><li>What if first trial is quashed as a nullity? </li></ul><ul><li>Fan Yew Teng v PP (1975). </li></ul><ul><li>Accused convicted for sedition. On appeal, his trial was quashed and he was released. Fan was then re-arrested and charged with the same offence. Lee Hun Hoe CJ (Borneo): No violation of Article 7(2) since he had not been convicted or acquitted of an offence. </li></ul><ul><li>Sua Soo Kim v PP (1975) </li></ul><ul><li>Appellant & another were jointly charged & tried in High Court. Sua was acquitted while the other was convicted. Convicted person appealed & his conviction was set aside, the trial being declared a nullity. Later, both of them were re-arrested and tried again. Held: No violation of Art 7(2). </li></ul>
  11. 11. <ul><li>Jamali bin Adnan v PP (1986) </li></ul><ul><li>Appellant was arrested and he led police to a place where 2 revolvers and ammunition were found. </li></ul><ul><li>Charged under Penal Code for 4 counts of robbery with a deadly weapon – 6 years’ imprisonment & 5 strokes of the cane. </li></ul><ul><li>Later charged with possession of 2 revolvers & 29 rounds of ammunition under Internal Security Act. Sentences to death </li></ul><ul><li>Supreme Court (Malaysia): ‘same offence’ was one in which ‘the ingredients are the same’. Comparing the two sets of charges, the ‘essential ingredients’ were not the same: </li></ul><ul><ul><li>… armed robbery can be regarded as an aggravated form of theft causing fear of instant death or hurt on the intended victim voluntarily by means of a deadly weapon. On the other hand, the essential ingredients under the Internal Security Act 1960 are simply control of firearms and/or ammunition without lawful authority. </li></ul></ul>
  12. 12. <ul><li>Mohamed Yusoff bin Samadi v AG (1975) </li></ul><ul><li>Accused charged with 5 counts of outraging the modesty of his students & acquitted. </li></ul><ul><li>Public Service Commission commenced disciplinary proceedings against him with a view to dismissal </li></ul><ul><li>Acquitted by PSC and he applied to High Court for declaration that Regulation 11 of the Public Service (Disciplinary Proceedings) Regulations 1970 was void and in violation of Article 11(2) </li></ul><ul><li>FA Chua J: The word ‘offence’ means ‘any act or omission punishable by law’. PSC charges against Yusoff were for ‘misconduct with outraging the modesty of certain of his girl pupils’. As such, he was not being tried for the ‘same offence’ since professional misconduct was not an offence under the law. </li></ul>
  13. 13. <ul><li>Quaere: Can a person who is subjected to a fresh detention order challenge the subsequent order as a violation of Article 11(2)? </li></ul><ul><li>PP v Musa (1970) </li></ul><ul><li>Musa detained under section 8(1)(b) of ISA and later served with restriction order. </li></ul><ul><li>Did the detention or restriction order amount to a ‘conviction’ of an offences that applied to Article 7(2) [Article 11(2)]? </li></ul><ul><li>Syed Othman J: ‘… the Minister’s decision to detain someone under the Internal Security Act was not a conviction for an offence or crime and the detention or restriction order is not a punishment for the purpose of Article 7 of the Constitution. </li></ul>
  14. 14. <ul><li>Quaere: Are these common law doctrines still part of Singapore law even though their underlying principles have been encapsulated in Article 11? </li></ul><ul><li>Jamali bin Adnan – Court restricted itself to the words of the Constitution and held that there is nothing to prevent the court from looking to the common law doctrine. </li></ul><ul><li>Harry Lee Wee v Law Society of Singapore (1985) </li></ul><ul><li>Wee was suspended from legal practice for 2 years for professional misconduct </li></ul><ul><li>Following his conviction on a criminal charge that arose from identical facts, Law Society proceeded to convene and subject him to a second disciplinary proceeding. </li></ul><ul><li>Wee argued that it was an abuse of process under principle of autrefois convict . </li></ul><ul><li>Privy Council: Common law principles of autrefois convict & autrefois acquit applied to disciplinary proceedings. There was thus an abuse of process in this case. </li></ul>
  15. 15. <ul><li>Article 12(1) </li></ul><ul><li>All persons are equal before the law and entitled to the equal protection of the law. </li></ul><ul><li>Article 12(2) </li></ul><ul><li>Except as expressly authorised by this Consitution , there shall be no discrimination against citizens of Singapore on the ground only of religion, race, descent or place of birth in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition or property or the establishing or carrying on of any trade, business, profession, vocation or employment. </li></ul><ul><li>(3) This Article does not invalidate or prohibit — </li></ul><ul><ul><li>(a) any provision regulating personal law ; or </li></ul></ul><ul><ul><li>(b) any provision or practice restricting office or employment connected with the affairs of any religion , or of an institution managed by a group professing any religion, to persons professing that religion. </li></ul></ul>
  16. 16. <ul><li>Discrimination is allowed provided that everyone in the same class is treated equally – like persons in like circumstances should be treated alike. </li></ul><ul><li>Key to this is the concept of classification. </li></ul><ul><li>Leading authority – Datuk Haji bin Harun Idris v PP (1977) – conviction for corruption. Suffian LP: </li></ul><ul><ul><li>‘ Equality before the law’ does not mean that ‘all laws must be general in character or universal in application’ </li></ul></ul><ul><ul><li>Parliament can make law in respect of a group or class of persons provided that the classification was </li></ul></ul><ul><ul><ul><ul><li>(a) rational; </li></ul></ul></ul></ul><ul><ul><ul><ul><li>(b) founded on an intelligble differentia that distinguishes persons that are grouped together from others that are left out of the group; and </li></ul></ul></ul></ul><ul><ul><ul><ul><li>(c) there must be a reasonable nexus between the basis of classification and the object of the discriminatory legislation. </li></ul></ul></ul></ul>
  17. 17. Is the Law Discriminatory? YES Is it expressly allowed by the Constitution? YES The law is valid. There is a presumption of constitutionality NO. Is the legislative classicifcation founded on an intelligible differentia ? NO. The law is unconstitutional YES. Does the classification bear a reasonable nexus to the object of the Act? YES. The law is constitutional NO. The law is unconstitutional
  18. 18. <ul><li>Main problem – How does the court determine the legislative object? </li></ul><ul><li>Taw Cheng Kong’s case </li></ul><ul><ul><li>High Court – Object is to obliterate corruption in Singapore </li></ul></ul><ul><ul><li>Court of Appeal – To obliterate all corrupt acts within and outside Singapore, irrespective of whether there are harmful consequences within the national boundaries. </li></ul></ul><ul><li>Mandatory death sentence – whether in violation of Article 12? </li></ul><ul><li>Does the grant of prosecutorial discretion violate Article 12? Lee Keng Guan v PP . </li></ul><ul><li>Absolutely forbidden – Article 12(2) – on the grounds only of race, religion, descent & place of birth – applies only to citizens. </li></ul><ul><li>Article 152 – Positive discrimination? </li></ul><ul><li>Is gender discrimination permitted? CEDAW </li></ul>