The Book of Prof Shad.docx

Religious institutions and offices can be reserved

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Religious institutions and offices can be reserved for persons professing that religion. Protective discrimination can be resorted to in favour of the aborigines of the Malay Peninsula. Residence in a state may be required for the election or appointment of an authority in that state. The Malay Regiment can be restricted to Malays. Article 145(3) & (3A): Under section 418A of the Criminal Procedure Code the Attorney-General has the power to transfer cases from a lower court to a higher court. In Datuk Haji Harun v PP [1977] 2MLJ 155 the accused was charged with a number of criminal offences. As he was then the Chief Minister of the State of Selangor, the AG issued the certificate to transfer his case from the Sessions Court to the High Court. If the accused were convicted, he would have one right of appeal to the Federal Court. Other accused in like position who were prosecuted in the Sessions Court would have two bites of the appeal cherry. Counsel for the accused, therefore, challenged the AG’s power under section 418A as a violation of Article 8’s promise of equal treatment under the law. The challenge succeeded in the High Court where Abdoolcader J declared section 418A as unconstitutional. But the Federal Court reversed the High Court on the ground that Article 145(3) was broad enough to permit the AG to transfer cases from one court to another. This decision was clearly wrong. Article 145(3) (as it was then) was about instituting, conducting or discontinuing any proceeding. There was no mention of transferring cases. The fact that subsequently a new Article 145(3A) was inserted to empower the AG to “determine the courts in which or the venue at which any proceedings … shall be instituted” confirms the correctness of Justice Abdoolcader’s ruling. Section 418A was also challenged in PP v Su Liang Yu [1976] 2MLJ 128 and PP v Oh Keng Seng [1977] 2MLJ125. But the challenges failed. The courts were reluctant to question an Act of Parliament. Article 145(3) gives to the Attorney-General wide discretion to institute or discontinue any criminal proceeding against persons accused of offences. The AG need not charge all persons accused of like offences under the same statute: Johnson Tan Han Seng v PP [1977] 2MLJ 66 . Multiplicity of statutes to cover the same offence is not unconstitutional provided that the law provides some rational criterion to guide the AG’s discretion on which law is to be invoked in what circumstances. Under Article 145 (3A), the AG has wide powers to choose the court and the venue at which proceedings may commence or be transferred to. The AG’s prosecutorial discretion has been challenged in the courts on numerous occasions but never with success. Article 145(3) seems to have eclipsed Article 8. Article 8(2): This Article forbids discrimination on account solely of religion, race, sex, descent or place of birth. But if the lack of parity is based on a prohibited plus an additional ground, the guarantee of equality cannot be invoked. Thus, public safety may be the predominant consideration in a Rukun Tetangga law that exempts women from night patrols.
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