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Case for judicial review E-mail
Tuesday, 25 November 2014

The Sunday Star
Legally Speaking by Roger Tan

Case for judicial review
Landmark judgment: In the Nov 7 decision of the Court of Appeal in Muhamad Juzaili Bin Mohd Khamis & Ors v Negri Sembilan State Government, 2014, the court struck down section 66 of the Syariah Criminal Enactment (Negeri Sembilan), 1992 which criminalises Muslim men for cross-dressing, as unconstitutional.

Is judicial review the correct procedure to challenge the validity of a statute?

IN the last two weeks, two interesting cases relating to homosexual and cross-dressing men were dealt with by the appeals courts in Singapore and Malaysia. However, the manner in which the two courts interpreted the equipollent provisions of our respective Constitution, described as consanguineous with one another as well as that of the United States and India, differed sharply.

In the Singapore case of Lim Meng Suang vs Attorney General, 2014, the highest court in Singapore, the Court of Appeal, ruled in a 101-page judgment on Oct 29 that section 377A of the Penal Code, which criminalises physical intimacy and sex between men, was not unconstitutional.

The appeals were brought by gay couple Lim Meng Suang and Kenneth Chee Mun-Leon who have been in a romantic and sexual relationship for the past 15 years, and Tan Eng Hong who had been arrested for engaging in oral sex with another man in a public toilet cubicle in 2010.

In a nutshell, the appellants had questioned the constitutionality of section 377A on the following grounds:

> that it infringed Article 9 of the Singapore Constitution (SC) that “no person shall be deprived of his life or personal liberty save in accordance with law”;

> that it infringed Article 12 SC in that “all persons are equal before the law and entitled to the equal protection of the law”; and

> that section 377A was a colonial legislation incorporated into the Singapore Penal Code in 1938 when she was a British colony and prior to the promulgation of SC.

Senior Counsel Deborah Barker (daughter of Singapore’s first post-Independence Minister of Law, EW Barker) argued for the gay couple that the right to life and personal liberty under Article 9 should also include a limited right of privacy and personal autonomy allowing a person to enjoy and express affection and love towards another human being.

Delivering the judgment of the court, Justice Andrew Phang Boon Leong ruled that the phrase “life or personal liberty” in Article 9 when read in entirety refers only to a person’s freedom from an unlawful deprivation of life and unlawful detention or incarceration. Period.

He went on to caution that foreign cases (with particular references to those decided by the Indian Supreme Court) that have conferred an expansive constitutional right to life and liberty should be approached with circumspection because they were decided in the context of their unique social, political and legal circumstances.

As regards Article 12 SC, the court applied the Malaysian case of Malaysian Bar v Government of Malaysia, 1987 in that to determine the constitutionality of a statute under Article 12 SC, the test is one of reasonable or permissible classification. It is a two-stage test which is applied only if the impugned statute is discriminatory in nature.

In other words, any law that treats people differently can still be held as constitutional if it passes this test.

 
Keep it colour blind E-mail
Sunday, 17 August 2014
Image
Respected figure: The writer with Sultan Azlan.

The Sunday Star
Legally Speaking by Roger Tan

Our judges, regardless of their race and religion, must always be mindful that they have taken an oath to preserve, protect and defend our Constitution not for some but for all Malaysians.

I HAVE wanted to write this for some time – my tribute to the late Sultan Azlan Shah who passed away on May 28, 2014. Not so much because he had been reading my column, but rather on two occasions which I had the honour of meeting him, he had encouraged me to keep on writing.

I was also troubled that when he passed away, he had not been accorded the appropriate recognition by leaders of our legal profession of his contribution to the administration of justice in this country.

This could be due to some differences with the Sultan’s decision not to call for fresh state elections when Pakatan Rakyat lost the majority control of the Perak state assembly in February, 2009. I had at that time written extensively that the Sultan’s decision was constitutionally correct.

Interestingly, the Federal Court’s judgment which subsequently endorsed the correctness of his royal decision is now being relied upon by his then most vociferous and sometimes insolent critics in Pakatan Rakyat to justify replacement of the embattled Selangor Mentri Besar, Tan Sri Khalid Ibrahim without the need for a state assembly sitting or the dissolution of the assembly.

Sultan Azlan belonged to the generation of great Malaysian jurists including the likes of Tun Mohamed Suffian Hashim and Tan Sri Eusoffe Abdoolcader. He was, after all, the youngest ever appointed High Court Judge and Lord President.

Not many knew that whenever the Malaysian Bar stood up for the independence of the judiciary, he was always there with and for us.

I still remember the keynote address he gave at the 14th Malaysian Law Conference on October 29, 2007; of which I was the organising chairman.

 
© 2014 Roger Tan :: www.rtkm.com