Constitutional Law 5 - Rts of Accused Persons


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Constitutional Law 5 - Rts of Accused Persons

  1. 1. Part IV of the Constitution
  2. 2. <ul><li>Introduction </li></ul><ul><li>Life & Liberty – Article 9 </li></ul><ul><li>Protection Against Retrospective Law Equality & Equal Protection </li></ul><ul><li>Freedom of Speech, Association & Assembly Freedom of Religion </li></ul>
  3. 3. <ul><li>All constitutions contain guarantees to protect civil liberties or human rights </li></ul><ul><li>England – Bill of Rights 1689. Still one of key British constitutional documents. </li></ul><ul><li>Statutory protection of freedom: </li></ul><ul><ul><li>From royal interference with the law. </li></ul></ul><ul><ul><li>From taxation by Royal Prerogative. </li></ul></ul><ul><ul><li>To petition the monarch </li></ul></ul><ul><ul><li>From the standing army in times of peace. </li></ul></ul><ul><ul><li>For Protestants to bear arms for their own defense </li></ul></ul><ul><ul><li>To elect members of parliament without interference from the sovereign. </li></ul></ul><ul><ul><li>Of speech and debates and absolute privilege for Parliamentary speeches. </li></ul></ul>
  4. 4. <ul><li>America – First 10 amendments to Constitution introduced by Madison in 1789. Ratified & effective in 1791. </li></ul><ul><li>Amendments: </li></ul><ul><ul><li>Freedom of speech, press, religion, assembly & right to petition </li></ul></ul><ul><ul><li>Right to keep and bear arms </li></ul></ul><ul><ul><li>Protection from quartering of troops </li></ul></ul><ul><ul><li>Protection against unreasonable search and seizure </li></ul></ul><ul><ul><li>Protection against double jeopardy, self-incrimination </li></ul></ul><ul><ul><li>Right to trial by jury in public </li></ul></ul><ul><ul><li>Right to civil trial by jury </li></ul></ul><ul><ul><li>Prohibition of excessive bail & cruel & unusual punishment </li></ul></ul><ul><ul><li>Protection of rights not specified in Bill of Rights </li></ul></ul><ul><ul><li>Reservation of powers of states and the People. </li></ul></ul>
  5. 5. <ul><li>Like American Bill of Rights, was never really a part of the original State of Singapore Constitution 1963. </li></ul><ul><li>Imported into Singapore from Constitution of the Federation of Malaysia via the Republic of Singapore Independence Act 1965. </li></ul><ul><li>Reid Commission (1957) recommended that the Constitution include ‘certain fundamental individual rights which are generally regarded as essential conditions for a free and democratic way of life.’ </li></ul><ul><li>Wee Chong Jin Commission (1966) recommended entrenching a provision to protect against torture & inhuman or degrading punishment or treatment – not accepted. </li></ul>
  6. 6. <ul><ul><li>Article 9 – Liberty of the person </li></ul></ul><ul><ul><li>Article 10 – Prohibition of slavery & forced labour </li></ul></ul><ul><ul><li>Article 11 – Protection against retrospective criminal laws & repeated trials </li></ul></ul><ul><ul><li>Article 12 – Equal protection </li></ul></ul><ul><ul><li>Article 13 – Prohibition of banishment & freedom of movement </li></ul></ul><ul><ul><li>Article 14 – Freedom of speech, assembly & association </li></ul></ul><ul><ul><li>Article 15 – Freedom of religion </li></ul></ul><ul><ul><li>Article 16 – Rights in respect of education </li></ul></ul><ul><li>Article 13 of Federal Constitution – Right to Property was intentionally excluded in 1965. Still no constitutional right to property in Singapore. </li></ul>
  7. 7. <ul><li>9(1) No person shall be deprived of his life or personal liberty save in accordance with law. </li></ul><ul><li>(2) Where a complaint is made to the High Court or any Judge thereof that a person is being unlawfully detained, the Court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the Court and release him. </li></ul><ul><li>(3) Where a person is arrested, he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice. </li></ul>
  8. 8. <ul><li>(4) Where a person is arrested and not released, he shall, without unreasonable delay, and in any case within 48 hours (excluding the time of any necessary journey), be produced before a Magistrate and shall not be further detained in custody without the Magistrate’s authority. </li></ul><ul><li>(5) Clauses (3) and (4) shall not apply to an enemy alien or to any person arrested for contempt of Parliament pursuant to a warrant issued under the hand of the Speaker. </li></ul><ul><li>(6) Nothing in this Article shall invalidate any law — </li></ul><ul><ul><ul><li>(a) in force before the commencement of this Constitution which authorises the arrest and detention of any person in the interests of public safety, peace and good order; or </li></ul></ul></ul><ul><ul><ul><li>(b) relating to the misuse of drugs or intoxicating substances which authorises the arrest and detention of any person for the purpose of treatment and rehabilitation, </li></ul></ul></ul><ul><li>by reason of such law being inconsistent with clauses (3) and (4), and, in particular, nothing in this Article shall affect the validity or operation of any such law before 10th March 1978. </li></ul>
  9. 9. <ul><li>Quaere: Does ‘Life’ mean physical life? </li></ul><ul><ul><li>This appears to be the case, but in Tan Tek Seng‘s case, Gopal Sri Ram JCA held that ‘life’ did not refer to mere existence but included ‘all those facets that are an integral part of life itself and those matters which go to form the quality of life.’ </li></ul></ul><ul><ul><li>Includes right to seek and be engaged in lawful and gainful employment; receive those benefits that society has to offer to them; and the right to live in a healthy and pollution free environment. </li></ul></ul><ul><li>Meaning of ‘personal liberty’? </li></ul><ul><ul><li>Government of Malaysia v Loh Wai Kong held that ‘personal liberty’ related only to liberty concerning the body or the individual. Did not include the right to travel overseas nor a right to a passport. </li></ul></ul>
  10. 10. <ul><li>Some constitutional provisions are absolute – eg Article 10 </li></ul><ul><li>Most others allow for legislative flexibility – ‘save in accordance with law’ </li></ul><ul><li>Specifically, what is the meaning of ‘law’? </li></ul><ul><li>Law = Duly enacted law – Arumugam Pillai v Govt of Malaysia (1975) </li></ul><ul><li>Law includes ‘fundamental rules of natural justice’ – Ong Ah Chuan v PP (1981): </li></ul><ul><ul><li>In a constitution founded on the Westminster model and particularly in that part of it that purports to assure to all individual citizens the continued enjoyment of fundamental liberties or rights, references to ‘law’ … refer to a system of law which incorporates those fundamental rules of natural justice that had formed part and parcel of the common law of England that was in operation in Singapore at the commencement of the Constitution. </li></ul></ul>
  11. 11. <ul><li>Quaere: What is covered by these ‘fundamental rules of natural justice’? </li></ul><ul><li>Tinsa Maw Naing v The Commissioner of Police, Rangoon (1950): </li></ul><ul><ul><li>Rules of natural law are as the mirage which ever recedes from the traveller seeking to reach it … to accept natural law as a higher law which invalidates any inconsistent positve law would lead to chaos. There is no certain standard and no measuring rod by which the so-called principles of natural justice can be ascertained or defined. Each judge administering justice would be a law unto himself. </li></ul></ul><ul><li>Haw Tua Tau v PP (1981): It would be ‘imprudent … to attempt to make a comprehensive list of what constitute fundamental rules of natural justice applicable for determining the guilt of a person charged with a criminal offence.’ </li></ul>
  12. 12. <ul><li>PP v Mazlan bin Maidin : The right to silence ‘has never been regarded as subsumed under the principles of natural justice.’ </li></ul><ul><li>Jabar v PP (1995): </li></ul><ul><ul><li>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. </li></ul></ul><ul><li>Substantive vs Procedural Natural Justice (as recognised in administrative law). </li></ul><ul><ul><li>Audi alteram partem </li></ul></ul><ul><ul><li>Nemo judex causa sua / Nemo judex in res sua </li></ul></ul>
  13. 13. <ul><li>Does the mandatory death penalty violate Article 9(1) </li></ul><ul><li>PP v Lau Kee Hoo & PP v Yee Kim Seng (1983) – Malaysian High Court refused to adjudicate on the wisdom or appropriateness of mandatory death penalty under Internal Security Act. </li></ul><ul><li>PP v Nguyen Tuong Van (2004) – whether death penalty by hanging was ‘cruel and unusual punishment’ contrary to Article 9(1) & Universal Declaration of Human Rights? </li></ul><ul><ul><li>UDHR not international convention or treaty binding on Singapore </li></ul></ul><ul><ul><li>No customary international law forbidding death by hanging </li></ul></ul>
  14. 14. <ul><li>Article 9(2) – High Court must investigate any complaint about persons unlawfully detained. </li></ul><ul><li>Prerogative writ of habeas corpus </li></ul><ul><li>Kamal Jit Singh v Minister for Home Affairs (1993) CA: </li></ul><ul><ul><li>Habeas corpus only issued on probable cause shown in affidavit </li></ul></ul><ul><ul><li>Onus of showing probable cause is on applicant </li></ul></ul><ul><ul><li>Once probable cause is shown, High Court has no discretion to refuse </li></ul></ul><ul><li>No habeas corpus for denial of right to counsel under Article 9(3) – Lee Mau Seng v Minister for Home Affairs (1971) </li></ul>
  15. 15. <ul><li>Article 9(3) – 3 related rights: </li></ul><ul><ul><li>Right to be informed ‘as soon as maybe of the grounds’ of arrest </li></ul></ul><ul><ul><li>Right to ‘consult’ counsel </li></ul></ul><ul><ul><li>Right to ‘be defended by a legal practitioner of his choice’ </li></ul></ul><ul><li>‘ As soon as may be’ – Aminah v Superintendent of Prison (1968): ‘as nearly as is reasonable in the circumstances of the particular case’ – suffices if informed orally </li></ul><ul><li>When does the right arise? When may it be exercised? </li></ul><ul><li>Lee Mau Seng v Minister for Home Affairs – Arises the moment a person is arrested, but only ‘entitled to have this constitutional granted to him by the authority’ who has him in custody. </li></ul>
  16. 16. <ul><li>Exercisable within a ‘reasonable time’ after the police have completed their investigations – Jasbir Singh v PP (1994) – Two weeks gap between arrest and access to counsel was reasonable </li></ul><ul><li>Queare: How will an accused know of his right to counsel? Is there a duty to inform? At what point? What happens if the family engages counsel without detainee’s knowledge? </li></ul><ul><li>Rajeevan Edakalavan v PP (1998) – Article 9(3) framed in the negative – ‘shall be allowed’ – therefore no obligation to be informed. </li></ul><ul><li>Sun Hongyu v PP (2005) – No right to contact 3 rd parties to discover & enquire into right to counsel </li></ul>
  17. 17. <ul><li>Exercisable within a ‘reasonable time’ after the police have completed their investigations – H ow far does the right extend? Can prisoner insist on being defended by a particular lawyer ? </li></ul><ul><li>Re Nigel Seed QC (2003) – Prisoner’s right under Article 9(3) subject to: </li></ul><ul><ul><li>Lawyer’s willingness and ability to act for him </li></ul></ul><ul><ul><li>Lawyer being properly admitted under Legal Professions Act </li></ul></ul><ul><li>Tan Chor Jin v PP (2008) – request for counsel must be reasonable. Whether fair trial prejudiced by lack of counsel. </li></ul>
  18. 18. <ul><li>Part XII of the Constitution – special powers to deal with subversion and times of emergency. In particular, Article 150 confers powers on both legislature and executive to make laws that contradict the Constitution </li></ul><ul><li>Article 149 – laws enacted may contravene Articles 9, 11, 12, 13, and 14. </li></ul><ul><li>Section 74 – Officer may arrest without warrant, any person whom he ‘has reason to believe’ might act in any manner prejudicial to the security of Singapore. </li></ul><ul><li>Minister may order person detained for up to 2 years if the President ‘is satisfied’ that it is necessary to prevent that person from acting in any manner prejudicial to the security of, or to the maintenance of public order or essential services of Singapore </li></ul>
  19. 19. <ul><li>Person arrested under ISA has the right to counsel under Article 9(3) and has the right to be informed of the grounds of his arrest as soon as possible. </li></ul><ul><li>Can ‘bad faith’ or ‘mala fides’ be challenged? </li></ul><ul><li>Karam Singh (1969) – Yes. But onus of proving mala fides rests on applicant Yeap Hock Seng (1975). </li></ul><ul><li>Meaning of ‘is satisfied’ – subjective or objective test. </li></ul><ul><li>Subjective test – Karam Singh , followed in Lee Mau Seng – Minister’s ‘satisfaction’ and the facts upon which the decision was made was not justiciable. </li></ul><ul><li>Objective test – Chng Suan Tze (1989) – Karam Singh & progeny no longer good law. Should apply the objective test – there cannot be an authorization of ‘arbitrary powers of detention’ and only courts can review exercise of these power. </li></ul>
  20. 20. <ul><li>Parliament intervened following Court of Appeal decision in Chng Suan Tze . </li></ul><ul><li>Constitution amended (Act 1 of 1989) inserted new Article 149(3): </li></ul><ul><ul><li>149(3) If, in respect of any proceedings whether instituted before or after 27th January 1989, any question arises in any court as to the validity of any decision made or act done in pursuance of any power conferred upon the President or the Minister by any law referred to in this Article, such question shall be determined in accordance with the provisions of any law as may be enacted by Parliament for this purpose; and nothing in Article 93 shall invalidate any law enacted pursuant to this clause. </li></ul></ul>
  21. 21. <ul><li>ISA amended. Section 8B: </li></ul><ul><ul><li>8B(1) … the law governing the judicial review of any decision made or act done in pursuance of any power conferred upon the President or the Minister by the provisions of this Act shall be the same as was applicable and declared in Singapore on the 13th day of July 1971; and no part of the law before, on or after that date of any other country in the Commonwealth relating to judicial review shall apply. </li></ul></ul><ul><ul><li>(2) There shall be no judicial review in any court of any act done or decision made by the President or the Minister under the provisions of this Act save in regard to any question relating to compliance with any procedural requirement of this Act governing such act or decision. </li></ul></ul>
  22. 22. <ul><li>Questions. </li></ul><ul><ul><li>Are constitutional amendments valid? </li></ul></ul><ul><ul><li>If so, are legislative amendments made pursuant to Article 149 valid? </li></ul></ul><ul><ul><li>If so, does ISA now exclude judicial review of executive decision altogether? </li></ul></ul><ul><ul><li>If not, does the test laid down in section 8B of the ISA exclude judicial review of executive action altogether? </li></ul></ul>
  23. 23. <ul><li>Procedural Challenges </li></ul><ul><li>Article 151(1(b) – ‘no citizen’ may be detained ‘for a period exceeding 3 months unless an advisory board constituted’ under article 151(2) ‘has considered any representation made by him’ and has ‘made recommendations thereon to the President.’ </li></ul><ul><li>Re Tan Boon Liat (1977) – failure by Advisory Board to make recommendations within 3 month period. Malaysian Federal Court held that the ‘condition precedent’ had not been satisfied and that the detention was thus not ‘in accordance with law’. </li></ul>