Article 7 prohibition of retrospective criminal law
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Article 7 prohibition of retrospective criminal law
- 1. Article 7: Protection Against Retrospective Criminal Laws
- 2. Article 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.
- 3. In article 7 (1): First Limb No person shall be punished for an act or omission which was not punishable by law when it was done or made Second Limb. No person shall suffer greater punishment for an offence than was prescribed by law at the time it was committed.
- 4. Prohibition of Retrospective Criminal Laws Retrospective alterations of substantive criminal law and punishment are not permitted. Retrospective alterations of procedural law are permitted.
- 5. Loh Kooi Choon [1977] 2 MLJ 18 The safeguard in Article 5(4) of the Constitution applies to any person arrested under any law including the Restricted Residence Enactment. Later the provision was amended. The effect of the amendment is to deprive the appellant of the protection afforded to him. The appellant questioned the constitutional validity of the retrospective amendment of article 5(4) namely.
- 6. Loh Kooi Choon Held: Constitutional provisions, like statutes, always operate prospectively and not retrospectively unless words used clearly indicate that a retrospective intention is intended. An express intention that a constitution shall operate retrospectively will be enforced.
- 7. Prohibition of Retrospective Criminal Laws Nordin Yusmadi Yusoff v. Public Prosecutor [1997] 4 CLJ 25 Ling Sing Hiaw v PP [1965] 1 MLJ 85 . PP v Musa [1970}1 MLJ 101 PP V Mohamed Ismail [1984] 2 MLJ 219 PP v Hun Peng Khai [1984] 2 MLJ 318 HAW TUA TAU V. PUBLIC PROSECUTOR 1980 1 MLJ 2
Notes de l'éditeur
- This means that if A does an act which is not a crime and after that Parliament legislates to make it a crime, the new law cannot apply to A. The law only applies to criminal acts committed after it has come into force. Similarly if A does an act which is a crime punishable with three months imprisonment and after that Parliament legislates to make that crime punishable with six months imprisonment , the new punishment cannot apply to A, but only to persons who commit that crime after the new law has come into force. The provision is applicable to criminal proceedings only, and not civil proceedings. In interpreting the provision the courts have drawn distinction between substance and procedure. Retrospective alterations of substantive law are not permitted, but those of procedural law are permitted.
- The making of an offence triable by a judge alone rather than a jury was held not to infringe article 7 (1). In PP v Musa [1970}1 MLJ 101 it was held that alteration of the scope of judicial review of a detention order does not infringe the protection mentioned in article 7 (1). Reducing the range of penalties from death and life imprisonment to death alone does contravene article 7(1). PP V Mohamed Ismail [1984] 2 MLJ 219 PP v Hun Peng Khai [1984] 2 MLJ 318