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    HAZEL LEELA A P RICHARD
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    Article 7 of the Federal Constitution protects against retrospective criminal laws and repeated trials. Section 1 prohibits punishing someone for an act that was not a crime when committed and prohibits greater punishment than allowed by law at the time. Section 2 prevents retrial for the same offense after acquittal or conviction, except if the original verdict is overturned. The courts have established some exceptions, such as if the first trial was nullified, or if different charges are brought based on the same facts.

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    Article 7 of the Federal Constitution protects against retrospective criminal laws and repeated trials. Section 1 prohibits punishing someone for an act that was not a crime when committed and prohibits greater punishment than allowed by law at the time. Section 2 prevents retrial for the same offense after acquittal or conviction, except if the original verdict is overturned. The courts have established some exceptions, such as if the first trial was nullified, or if different charges are brought based on the same facts.

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    128 views13 pages

    Fundamental Liberties: Article 7

    Uploaded by

    HAZEL LEELA A P RICHARD
    Article 7 of the Federal Constitution protects against retrospective criminal laws and repeated trials. Section 1 prohibits punishing someone for an act that was not a crime when committed and prohibits greater punishment than allowed by law at the time. Section 2 prevents retrial for the same offense after acquittal or conviction, except if the original verdict is overturned. The courts have established some exceptions, such as if the first trial was nullified, or if different charges are brought based on the same facts.

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    Fundamental Liberties : Article 7

    Article 7 : Introduction
    • Article 7 basically deals with Protection against retrospective criminal laws and
    repeated trials.
    • The reason of such prohibition can be found from the decision made in the case of
    Liyanage v The Queen [1967] 1 AC 259
    • In the case stated above, it was observed that it is unfair to punish a person for
    doing something which he could not have know during the commission
    • Fact : Douglas Liyanage, was a former Sri Lankan civil servant. In 1963 he was
    named as the first accused of the attempted coup d'état in 1962 by the state
    prosecution. It was claimed by the state that he was the mastermind behind the
    attempted coup d'état. Event though he was convicted along with 11 others
    accused in 1963, the Privy Council, in its ruling given in December 1965, held the
    Special Act of 1962 ultra vires of the Ceylon constitution and said that the Act had
    denied fair trial. According to the Privy Council, the law had been specially enacted
    to convict the men; under trial they did not have the protections that they would
    have had under general criminal law. It acquitted all the eleven.
    Article 7
    • Protection against retrospective criminal laws and repeated trials

    7. (1) 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 committed.

    (2) A person who has been acquitted or convicted 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.
    Article 7
    • In the case of Loh Kooi Choon v Government
    of Malaysia [1977] 2 MLJ 187; it was held that
    Article 7 consist of two limbs :
    1) Protection from retrospective creation of
    offences
    2) Protection from retrospective increase in the
    punishment for existing offences
    Article 7(1)
    7. (1) 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 committed.
    • Nevertheless, Article 7(1) is only applicable to substantive laws and
    as such retrospective alteration to procedural laws is not within the
    protection offered by the provision.
    • Case : Gerald Fernandez v Attorney-General Malaysia :
    – Defendant being tried in Singapore for Corruption, but later being extradited
    to Malaysia.
    – The court held that extradition of Criminal offence after it has been committed
    is not contrary to Article 7 (1)
    Article 7(1)
    • Case : Lim Sing Hiaw v Public Prosecutor [1965] 1 MLJ 85
    – Fact : the accused had been charged under ISA for possession
    of firearms. The trial however had been conducted under
    Emergency (Criminal Trials) Regulations, 1964 in which the
    procedural law had been passed after the crime had been
    committed. The accused plead the he had been punished under
    the law which was not in existence during the crime was
    committed, thus it contravene with Article 7.
    – Held : Appeal dismissed. Since Emergency (Criminal Trials)
    Regulations, 1964 is only procedural law, therefore its not in
    violation of Article 7 of FC.
    Article 7(1)
    • Case : Chua Han Mow v Superintendent of Pudu Prison
    – Fact : Extradition of fugitives; application of Extradition treaties
    under the Malaysian context.
    – Held : Syed Othman FCJ ; Article 7(1) did not prohibit retroactive
    legislation on extradition for such a law was not penal in nature
    but rather procedure for extradition.
    • Case : Public Prosecutor v Mohamed Ismail
    – a new law which removed the Judge’s discretion was in breach of
    Article 7. Here, the accused was tried under the old Dangerous
    Drugs Act 1952 which gave the trial Judge discretion over the
    range of punishments prescribed for drug trafficking. Under the
    new law, the death penalty was mandatory.
    Article 7(1)
    • Case : Nordin Yusmadi bin Yusoff v Pendakwa
    Raya
    – The appellant was convicted for statutory rape and
    sentenced to detention in Henry Gurney School. He
    served the punishment and was to be released on
    reaching the age of 21. It was only this time that the
    appeal lodged by the prosecution was heard and he
    was sentenced by the High Court.
    – Held : COA : such sentence was in breach of Article
    7(1)
    Article 7(2)
    (2) A person who has been acquitted or convicted 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.

    • Article 7(2) is designed to prevent repeated trials and has


    incorporated the common law pleas of autrefois acquit
    (the accused has already been acquitted of the offence)
    and autrefois convict (the accused has already been
    convicted of the offence).
    Article 7(2)
    • In order to invoke protection under this
    provision, questions need to be asked :
    i. Whether there has been convictions and
    acquittal ; and
    ii. The meaning of the same offence
    • Apart from exclusion of application pertaining
    to Procedural law, the cases decided have also
    laid down more exceptions; where protection
    under Article 7 (2) could not be invoked.
    Article 7(2)
    • Case : Fan Yew Teng v Public Prosecutor
    – Article 7(2) does not apply if the previous trial was declared a
    nullity because there is in fact no trial in such a situation
    • Case : PP v Teh Cheng Poh
    – It also does not apply if the accused is charged with a
    different offence even if the new charge is based on the same
    facts
    • Case : PP v Musa
    – Not apply to an accused who has been subject to preventive
    detention for such was not a prosecution or trial
    Article 7(2)
    • Case : PP v Yeap Hock Seng
    – Held : Trial and acquittal were no bar to
    administrative detention
    • Case : Mohamed Yusoff bin Samadi v Attorney
    General of Singapore
    – A teacher was acquitted of using criminal force
    but was subsequently put before a domestic
    disciplinary proceeding. It was held that this is not
    contravening Article 7
    Article 7(2)
    • However in the case of Zakaria Abdul Rahman v
    Ketua Polis Negara, Malaysia
    – It was held that Article 7(2) applies when a person is put
    before two disciplinary proceedings on the same set of
    facts.
    – Principles laid down by Arifin Zakaria J in the
    abovementioned case;
    1) Doctrines of autrefois convict or acquit apply to disciplinary
    proceedings
    2) One could not put to other proceeding based on the same
    set of facts.

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