2016 Global Review of Constitutional Law

crimination (ICERD) in 2015. It expects to
ratify the convention in 2017. However, any
domestic effect to the ICERD must be and
has yet to be specifically legislated. 30 As the
Court of Appeal has explained, since treaties
are signed by the Executive without the need
for prior legislative approval, they cannot be
self-executing as this would intrude into Parliament’s
legislative powers. 31
MAJOR CASES
Rights and Freedoms
1. Protection from Arbitrary Deprivation of
Life
2016 featured many constitutional challenges
arising from amendments to the Penal Code
and Misuse of Drugs Act (“MDA”), providing
for persons guilty of certain forms of murder
and drug trafficking to be, in certain circumstances,
sentenced to life imprisonment
and caning instead of a death sentence. Prior
to these amendments in 2012, the death sentence
was mandatory for these offences.
In Prabagaran, 32 the Court of Appeal upheld
the constitutionality of the amendments
to the MDA introducing these discretionary
sentencing powers if the accused drug trafficker
was a mere courier and the Public
Prosecutor certifies that he had “substantively
assisted” in disrupting drug trafficking activities.
The applicants had not been denied
protection from deprivation of life except
“in accordance with law” under Article 9(1)
of the Constitution. The Court observed that
the applicants had all been given opportunities
to provide information to assist. Natural
justice, entailed in the concept of “law”,
did not also require that they have a chance
to address the Public Prosecutor on whether
they had rendered substantive assistance,
which turned on factors they would be in
no position to comment on. Further, the requirement
for substantive assistance was not
too absurd or arbitrary to be “law” because
it bore a rational relation to the purpose of
the provision, which was to enhance operational
effectiveness. Poignantly, the Court
of Appeal pointed out that if the applicants
succeeded in showing that the new provision
was unconstitutional, their death sentences
would remain untouched because, apart from
the new provision, the death penalty would
have been mandatory.
2. Death Penalty and Finality
A distinct theme in several cases was the
Court’s concern with finality as an integral
aspect of justice, even in capital cases. In
Kho Jabing v Public Prosecutor 33 (“Kho
Jabing (criminal motion)”), the Court of
Appeal set a high standard for reopening a
concluded criminal appeal, specifically that
there had to be sufficient material on which
it could be concluded that there had been a
miscarriage of justice. Notably, raising new
legal arguments involving constitutional
points did not automatically entitle an applicant
to a review of his concluded appeal.
Rather, constitutional arguments also had to
be based on new and compelling material
that showed the decision to be demonstrably
wrong or tainted by fraud or breach of
natural justice. The same touchstone applied
to cases involving the death penalty. It was
observed that once capital cases received the
anxious and searching scrutiny they deserve,
and the avenues of appeal or review have run
their course, “attention must then shift from
the legal contest to the search for repose”. 34
The Court’s motivating concern was to protect
the integrity of the judicial process as
well as to prevent the damage that an endemic
“culture of self-doubt” may do to public
confidence.
In subsequent decisions, the Court of Appeal
strongly discountenanced attempts to delay
the execution of a death sentence imposed by
law at the eleventh hour where no real issue
of merit was raised. Following Kho Jabing
(criminal motion), the Court of Appeal heard
and dismissed a second criminal motion
filed two days before Kho’s rescheduled execution
date which again sought to set aside
his death sentence. The same day, two civil
applications were filed to stay Kho’s execution
on account of constitutional challenges,
although only one proceeded. In Kho Jabing
v Attorney-General, 35 the Court of Appeal
refused the stay, opining that the fresh civil
application was an abuse of process because
it traversed the same ground already determined
in prior criminal motions. Having decided
in Kho Jabing (criminal motion) that
the test for determining if a person convicted
of murder ought to be sentenced to death 36
was normatively defensible, the Court declined
to reopen the inquiry of whether the
same test was too vague to be considered as
“law” under Article 9 – the substance of this
challenge had been addressed. There was
also no merit to his allegations of retrospectivity
and unequal treatment.
Chijioke Stephen Obioha v Public Prosecutor
37 dealt with another application to set
aside a death sentence as a constitutional violation,
filed two days before the execution
date. The Court of Appeal dismissed the application
on the ground that it was an abuse
of process; the procedural history showed
that the applicant had filed multiple applications
in dribs and drabs to prolong matters
ad infinitum when he had ample opportunity
to present motions based on the arguments
being advanced. The Court further observed
that the time taken to review the death penalty
regime and time afforded to the applicant
to avail himself of the new provisions could
not amount to undue delay that converted
death row into a form of cruel and inhuman
punishment in itself.
30
See Yong Vui Kong v PP [2015] 2 SLR 1129, where the Court of Appeal took a strictly dualist view of international law.
31
Ibid, [45].
32
Prabagaran (n. 16).
33
[2016] 3 SLR 135.
34
Ibid [50].
35
[2016] 3 SLR 1273.
36
The test, laid down in Kho’s original re-sentencing appeal, was that the death sentence would be appropriate where the offence “outraged the feelings of
the community”: PP v Kho Jabing [2015] 2 SLR 112, [44], [86], and [203].
37
[2017] 1 SLR 1.
178 | I•CONnect-Clough Center