The Book of Prof Shad.docx

Held and rightly so that the amendment mandating a

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held, and rightly so, that the amendment mandating a mandatory death penalty could not apply to the defendant's case as it was enacted after the offence had been committed. 39
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Permissible exceptions Article 7's prohibition against retrospect applies only to laws that create new criminal offences or enhance penalties for existing crimes. A number of situations are not caught by the constitutional ban. The word "punishment" in Article 7(1) has been interpreted in Loh Kooi Choon to refer to criminal sanctions and not to civil penalties. Laws dealing with non-criminal matters such as maintenance or tax liability can be backdated. Amendments to the Constitution are of a civil nature and can be legislated retrospectively. Indeed, some alterations to the basic law have been backdated to Merdeka Day. Refer for example to amendments to Article 135(2). Article 7(1) forbids retrospective alteration of substantive criminal laws that provide for offences and penalties. But penal laws of a purely procedural nature can be backdated. In Lim Sing Hiaw, the court upheld a retrospective amendment that converted a trial by jury to trial by judge alone. In Gerald Fernandez , extradition procedures were amended retrospectively to facilitate the return of a fugitive to Singapore for an offence committed in the republic before the amendment. In Haw Tua Tau , rules of procedure were amended after the commission of the alleged crime but before the start of trial. The court held that the protection of Article 7(1) is against conviction and sentence only and not against the procedure for trial. In PP v Musa, it was held that reducing the scope of judicial review of a preventive detention order by retrospective legislation does not violate Article 7(1). Criminal laws decreasing the penalty for an offence or abolishing an offence can be backdated. An accused can take advantage of the beneficial provisions of ex post facto laws. Like most provisions of fundamental rights, Article 7(1) can be departed from by emergency legislation like the Emergency Essential Powers Act 1979 which was backdated to 1975. Conclusion In sum, the protection against backdated (ex post facto) laws is subject to so many qualifications that the right safeguarded has become quite insignificant. 40
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4. PROTECTION AGAINST DOUBLE JEOPARDY - ARTICLE 7(2) No person should be imperiled by subsequent criminal prosecutions if he has already been adjudged as innocent or guilty. Article 7(2) bars retrial for a charge on which there is already a conviction or an acquittal but every new act of criminality will trigger a new criminal proceeding. A Malaysian citizen, who was convicted in Canada of sexually assaulting dozens of women in Toronto, served out his 24-year sentence and was then deported to Malaysia. Understandably, there were demands from many concerned Malaysians to act against him in order to prevent any repeat of the heinous crimes.
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