The Book of Prof Shad.docx

Procedural rules are often backdated to cover pending

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Procedural rules are often backdated to cover pending cases. Article 7(1) The Constitution of Malaysia does not contain a total ban on retrospective legislation. But in the interest of a fair criminal process, Article 7(1) creates two safeguards against backdated legislation. First, a law creating a new penal offence cannot have effect back in time. 38
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Second, if the penalty for a criminal offence is enhanced, the law increasing the penalty cannot be applied retrospectively. Creating new offences Article 7(1) states that "no person shall be punished for an act or omission which was not punishable by law when it was done or made." This means that if Parliament creates a new criminal offence, it is prohibited from giving retrospective effect to the provision. A substantive criminal statute must always be prospective in operation. In legal jargon, ex post facto criminal laws are forbidden by the Constitution. In criminal proceedings, the law applicable to the charge must be the law existing at the time of the commission or omission of the act and not the law applicable at the time of the trial or verdict. The criminality of an act must be judged by reference to norms at the time of the wrongdoing and not by later developments in the law. Thus, if a statute criminalises the giving or taking of dowry, the new provision cannot be used to punish participants in this nefarious social practice before commencement of the new law. The English position is different. In the absence of a supreme constitution, Parliament's power to legislate retrospectively has no limits. Even common law courts are known to add to the list of criminal offences. In DPP v Shaw , the defendant had printed and sold a directory of prostitutes. He was charged with "conspiracy to corrupt public morals." His lawyer argued that the alleged offence was unknown to the law of England. But the House of Lords ruled that the courts have a residual power to superintend the moral life of the community by establishing new criminal offences. The court recognised the new offence, applied it retrospectively and convicted Shaw. In Malaysia, Article 7(1) would not permit such judicial activism. Increasing the penalty The second limb of Article 7(1) provides that "no person shall suffer greater punishment for an offence than was prescribed by law at the time it was committed." If the penalty for a criminal offence is enhanced, the amending law cannot be applied retrospectively. However, if a penalty of a different nature is legislated, as when a fine is substituted with a "community service order," it is not clear whether the latter amounts to a greater punishment. In PP v Mohamed Ismail , the defendant was charged with drug trafficking which was punishable with life imprisonment or death under Section 39B(1) of the Dangerous Drugs Act 1983. While his trial was pending, the law was amended to provide for a mandatory death penalty. At the close of the trial, the public prosecutor invited the court to impose the enhanced penalty. In refusing the request, the judge
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