Article 6 & 7

1
 Slavery and Forced Labour

ARTICLE 6
Learning Outcome: The students should be able to
comprehend the status of slavery and
forced labour within the present context
of the Federal Constitution.
Art 6
Prohibition against slavery and forced labour
For slavery, the FC is final and absolute
FORCED

LABOUR?
4
 Exceptions for forced labour:
 Those made under the law passed by Parliament
providing for compulsory service for
national purposes.
 Work incidental with imprisonment
imposed by a court of law

5
 Slavery is not defined in the FC
 Traditional sense- slaves are owned by their
masters

 Modern sense- the definition of slavery should

be widened to cover the treatments of
workers
 Prisoners cannot be forced to work in mines, factories, construction sites without their consent
and without payment

There are new types of slavery in

this modern day:

 Debtor creditor work to settle debt of the landlords

 Contract labourers to surrender salaries to tekong
 Sex industry exploit women and children
Bharat Estates Sdn Bhd & Anor v Parawakan a/l
Subramaniam [2000] 3 AMR 3030
Held: A6 provides the constitutional context for
employment regulated under the Employment Act
1955 which means that the provisions under this
statute must be read in light of constitutional
provisions under the said articles
Every employee has a right to choose his employer
To compel an employee to work for a particular
employer, without affording him a choice in the
matter is merely one form of forced labour
Marni binti Anyim v Shalini Shanmugam & Anor [2005] MLJU 606
Marni alleged that in the course of her employment with the
Kumars until 27 November 2000 when she ran away form their
residence, she was subjected to moral degradation, verbal and
physical abuse by Mdm Shalini. The abuses included being hit by a
hammer on her fingers, kicked and stabbed with a screwdriver.
The employer was convicted by the Honourable Sessions Court
Judge, after a full trial and sentenced to six months imprisonment
and a fine of RM1,000 in default one month imprisonment for the
charge under s 326 of the Penal Code and one month imprisonment
for the charge under s 323.
 She appealed against both convictions and sentences. The High Court
allowed her appeal and she was discharged and acquitted of both charges.
However upon further appeal to the Court of Appeal, that decision was
reversed and the judgment of the Sessions Court was restored. The
employer then served the full sentence imposed by the Sessions Court.
The defendants were also liable for the injuries sustained by Marni in the
course of her employment with them.
ARTICLE 7
10
Article 7 of the Federal Constitution

11
Learning Outcome…

12
Retrospective Criminal Law

 When an enacted law come into operation?

 Section 19 of the Interpretation Act- The date
provided in the law/ where no date provided,
the day following the gazetting of the law

13
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.

ILLUSTRATION…

14
 “ex post facto law” / “retroactive law”:

 a law that retroactively changes:

 the legal consequences of acts committed or
 the legal status of facts and relationships that
existed prior to the enactment of the law.

15
 In reference to criminal law:
 it may criminalize actions that were legal when committed;
or
 it may aggravate a crime by bringing it into a more severe
category than it was in at the time it was committed; or

 it may change or increase the punishment prescribed for a

crime, such as by adding new penalties or extending terms;
or
 it may alter the rules of evidence in order to make
conviction for a crime more likely than it would have been
at the time of the action for which a defendant is
prosecuted.

16
 If a penalty of a different nature is legislated,
e.g. a fine is substituted with a community
service- not clear whether community service
amounts to a greater punishment

17
 By A.7, there can be no ex post facto criminal
laws

 2 safeguards against backdated legislations:

 That Parliament cannot create a new offence and give it a
retrospective effect, &
 That the increase for the punishment for a penalty cannot
be done retrospectively

18
 Keywords: ‘punished for’ and ‘greater
punishment’
 It protects basically the act or omission which
is not yet an offence at the time it is
committed.
 The act comes first, then the sanction
 For non-criminal situations, it can be
tolerated

19
 This protection is only applicable in criminal
law, this was affirmed in Loh Kooi Choon v
Govt of Malaysia [1977] 2 MLJ 187

 Looking at the decisions from the Malaysian

courts, they have drawn the distinction
between the procedural and substantive
criminal laws to the effect that only
retrospective substantive criminal law will be
contrary to A7 (1)
20
 Substantive Criminal Law- refers mainly to
the part of the law which creates the offence
or establishes the offence or the part which
provides punishment for the offence

 Procedural Criminal Law- mainly provides for

the process of conviction, the process of trial,
the mode of giving evidence and etc

21
Cases
Lim Sing Hiaw v PP [1965] 1 MLJ 85
The appellant was tried and convicted by a single judge without
jury under the provision of the Emergency Criminal Trial Regulation.
This law at that point of time was a new procedure which was
introduced after the offence had been committed.
Originally it should be tried by judge with jury which generally gave
more advantages to the accused.
He claimed that it is a violation of A7
Court said there is no violation 0f A7 because the amendment in
this case was regarded as the mode of trial (procedure)

22
Chua Han Maw v Superitendent of Pudu
Prison [1979] 2 MLJ 70
The appellant was extradited to face a charge
for drugs related offence. This was made
possible by a recent amendment with
retrospective effect.
He claimed that this is contrary to A7(1)
Held: the amendment was valid because it
does not relate to the personal nature of the
offence but only to the procedure
23
Haw Tua Tau v PP [1980] 1
MLJ 2
Initially the accused was
allowed to make an unsworn
testimony from the dock but
that was removed by an
amendment to CPC which
was made to have
retrospective effect.
He claimed that this was
contrary to A7(1)
Held: this was only a
procedure

24
 These 3 cases can be compared to PP v Mohamed Ismail [1984]
2 MLJ 219
 The accused was charged and convicted under s39B of DDA. On
the day of conviction, new amendment came into force to the
effect that the death penalty was made mandatory.
 Initially the judge upon founding the guilty can choose life
imprisonment or death penalty.
 He tried to challenge that this amendment was contrary to A7(1)
 The court agreed that the amendment was related to the
punishment (substantive), therefore, it cannot be retrospective in
nature

25
 Mohd Roziman Bin Saaidon & Anor v Public
Prosecutor [2015] MLJU 1283
 Facts:
 The applicants were arrested on 13.9.2013 and charged
before the Magistrates' Court Kulai, Johor Darul Takzim
under Section 15(1) (a) of the Dangerous Drugs Act, 1952.
 The examination and analysis on the urine samples of the
applicants were carried out by the Science officer.
 On 25.7.2013, the prosecution applied to the Magistrates'
Court for an order to have the charges against the
applicants respectively be discharged not amounting to
an acquittal (DNAA) to which the court ordered that the
charges against the applicants be DNAA.
26
 This is due to the decision of the Court of Appeal in Yusri
Yahya v PP on 28.6.2013 where the Court of Appeal held
that the urine specimen examination and analysis under
Section 31A (1AA) of the Dangerous Drugs (Amended)
Act, 2014 must be conducted by a medical officer as
defined under the section which also includes the
chemist.
 A Science officer has no jurisdiction to conduct
examination and analysis of the urine specimen.

27
 On 10.9.2014 the applicants were re-charged for
the same offence under Section 15(1) (a) of the
DDA, 1952.
 The prosecution intends to rely on the new
amended Section 31A (1AA) in respect of the
urine test report of the applicants carried out by
the Science officer.
 The learned counsel for the applicants submitted
that the Amended DDA, 2014 is not
retrospective as it came into effect on 15.2.2014.
28
 By way of a preliminary objection, the notice of
application is filed by the applicants seeking the
following reliefs namely (among others):
a) For an order that the amended provision of Section 31A(1AA) of the
Dangerous Drugs (Amended) Act, 2014 has no retrospective effect;
b) For an order that the amended provision of Section 31A(1AA) of the
Dangerous Drugs (Amended) Act, 2014 is not applicable to re-charge
the applicants.
c) For an order that the re-charged of the applicants vide Criminal Trial
No:82-2-09-/2014 is void and unlawful as the original charge against
the applicants in respect of Criminal Trial No: 82-1(3)-2013 had been
DNAA on 25.7.2013;
d) For an order that the re-charged of the applicants in respect of
Criminal Trial No: 82-2-09-/2014 be struck-out as being unlawful
because the original charge against the applicant in the Criminal
Trial No: 82-2(3)-2013 was given a DNAA on 25.7.2013

29
 The issue before the Court: Whether the amendment in
Section 31A (1AA) of the Dangerous Drugs (Amendment)
Act, 2014 is retrospective or prospective?
 High Court allowed the applicants' reliefs sought in the
application prayed for and held among others:
 “The Amendment Act is not retrospective but prospective
and to interpret it otherwise would infringe art 7(1) of the
Federal Constitution which states that no person shall be
punished for an act or omission which was not punishable
by law when it was done. If the case was to proceed for trial
the evidence of the chemist report on the urine specimen
of the applicants was inadmissible as it did not comply with
s 31A(1A) of the DDA. Section 31A(1AA) of the Amended
DDA 2014 was inapplicable as the offence committed was
before the amendment had come into force”.

30
Protection against repeated
trials for the same offence

A7(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.

The underlying philosophy- a person should not suffer for more that
one trial process and punish twice for the same offence.
The prosecutor only has opportunity to prosecute a person once for
the same offence

31
 Originally the terms used under the common
law are autre fois acquit and convict

 Exceptions-
- “except when the conviction or acquittal has
been quashed”

- If a person is discharged or dismissed, he shall

not be regarded as a person who is acquitted

32
 Only a person who is acquitted can claim the
protection of DJ if he is charged again
 Section 302 of the CPC- contains the similar
provision and adds that ‘a dismissal or
discharge shall not amount to an acquittal’

33
 Section 302 CPC. Person once convicted or acquitted not to be
tried again for same offence.
  (1) A person who has been tried by a Court of competent
jurisdiction for an offence and convicted or acquitted of that
offence shall, while the conviction or acquittal remains in
force, not be liable to be tried again for the same offence nor
on the same facts for any other offence for which a different
charge from the one made against him might have been made
under section 166 or for which he might have been convicted
under section 167.

34
 Acquitted/Convicted: comes at the end of
the trial after both parties have presented
their case and the court has fully considered
the issue (after the case is tried on its merit)
 Dismissed/discharged/quashed: e.g when
the prosecutor feels that they do not have
sufficient evidences, the case will be
dismissed. It will not amount to a full
acquittal and therefore outside the scope of
A7 (2) (the case is not fully tried on its merit)

35
 EXCEPTIONS:
- Discharge
- Quashing of earlier trial
- Different offence
- Technical errors
- Appeals
- Preventive detention
- Disciplinary Proceedings
- Multiplicity of proceedings
- Civil proceedings
- Re-trial

36
Cases
Fan Yew Teng v PP [1975] 2 MLJ 235
The appellant member of Parliament, convicted for sedition but on
appeal, the conviction was quashed for certain procedural defects
but no retrial was ordered
Subsequently, the appellant was rearrested and charged with the
same offence and he claimed DJ
On appeal, the FC decided that the second trial was valid since the
first trial was quashed or declared a nullity and the court regards as if
there us no trial at the first place (void ab initio)

37
Yeap Hock Seng v Minister of Home Affairs [1975] 2 MLJ 279
This case involved the preventive detention
The appellant was initially discharged but was rearrested under
special law
One of the grounds of appeal is DJ
Held: this situation is outside the scope of A7(2) and therefore this
detention is valid on the grounds:
1- discharge does not amount to acquittal
2- the protection of DJ does not apply to ministerial detention
(executive) (because it does not involve any trial)

38
 Lye Pong Fong v Public Prosecutor [1998] 6
MLJ 304, Justice Suriyadi made the following finding:
 “… if a detention order is not a conviction, then surely a
restrictive residence order will never qualify. If no
conviction has been recorded, then it follows that the
issue of double jeopardy does not arise at all…Even if the
subject’s liberties are curtailed, by reason of the fact that
the normal criminal and preventive laws are
complimentary to each other, the concept of double
jeopardy as provided by law are inapplicable here”.

39
Similar position can be seen in PP v Musa [1970] 1 MLJ 101
Jamali Adnan v PP [1986] 1 MLJ 163
The appellant was initially convicted with armed robbery. While he
was serving his sentence, he was again charged under ISA for
unlawful possession of fire arms which carries death penalty.
He claimed that the second charge is contrary to A7(2)
Supreme Court: His second trial and conviction are still valid
(outside DJ)
Grounds: the court interpreted the term ‘same offence’ narrowly.
The second charge was not for the same offence although it arises
from the same fact and same person

40
 Reasons:
- The ingredients of the second offence was
not the same as the first one
- There could not be a conviction of the first
offence on the charge of the second offence
- The second offence could not be heard in the
Sessions Court unlike the first

41
 In Public Prosecutor vTeh Cheng Poh [1978] 1
MLJ 68b, Arulanandom J held that a person
cannot be said to be in double jeopardy
unless he has been convicted or acquitted for
the same offence before.

42
 Palautah a/l Sinnappayan & Anor v Timbalan
Menteri Dalam Negeri, Malaysia & Ors [2010]
3 MLJ 295
 Facts: The appellants were charged at the sessions court on 21
October 2000 for an offence under s 304 of the Penal Code.
 On 13 October 2008, the appellants were acquitted and discharged
but were however arrested again outside the sessions court and
taken to the Temerloh Police Station where they were then detained
for a period of 60 days as provided under the Emergency (Public
Order and Prevention of Crime) Ordinance 1969.
 The appellants were not given access to legal representation during
the said detention period. A number of applications were made by
the appellants to the respondents to enable them to be given access
to legal representation but to no avail up to the day when the
detention orders were issued against the appellants on 11 December
2008. The High Court dismissed their applications for a writ of
habeas corpus.
43
 The issues:
 (i) whether the appellants had been deprived of legal
representation as provided under art 5(3) of the Federal
Constitution during the 60 days detention under s 3 of
the Ordinance and whether this invalidated the
detention process issued under s 4(1) of the Ordinance;
and
 (ii) whether the doctrine of autrefois acquit was
applicable to both the appellants' case and the detention
orders issued against the appellants were null and void.

44
 Federal Court dismissed the appeal and held:
o A complaint by a person under lawful detention that he has been refused
access to counsel contrary to the second limb of art 5(3) of the Constitution
will not have the effect of rendering his detention unlawful and habeas
corpus is not the proper remedy
o The doctrine of autrefois acquit did not apply to the appellants' case. The
scope and extent of the protection enshrined under art 7(2) of the
Constitution only applies to criminal offences wherein a person who has
been acquitted or convicted of an offence by the court shall not be tried
again for the same offence. The preventive detention of a detainee under
the Ordinance cannot be equated with punitive detention of an accused
person found guilty for committing an offence under the criminal law and
that the preventive detention made against the appellants in the present
case was not subject to art 7(2) of the Constitution.
o There is a distinction between the power conferred under art 145 of the
Constitution which allows the attorney general to decide the course of
prosecution and the power of the Minister pursuant to the preventive
legislations under arts 149 and 150 of the Constitution.

45
 DJ applied in the following case:
 Nordin Yusmadi bin Yusoff v PP [1997] 3 MLJ 754
 The appellant was convicted for statutory rape (sexual
relationship with under age partner even though with consent)
 He was under age and therefore he was tried under the Juvenile
Court Act and he was sentenced to serve time at the
rehabilitation school
 Later on, the PP appealed to the court of appeal for the sentence
to be substituted with imprisonment.

46
 By the time the CA arrived at its decision, the
appellant had already served the sentence
 Held: the first sentence was proper that he
was a juvenile and he should be tried as a
juvenile. To allow another set of sentence
would amount to DJ

47
 CASES INVOLVING DISCIPLINARY ACTION, TO WHAT
EXTENT DJ APPLIES
 Mohamed Yusoff Samadi v AG [1975]
 Involved a teacher who had been charged for outraging the
modesty of the student. Then he was acquitted.
 After that, the Public Service Commission initiated the
disciplinary proceeding against him
 He challenged on the ground of DJ

48
 Court:
o no principle of law precludes a man who has been acquitted or convicted
upon a set of facts alleged to constitute an offence being subsequently
subjected upon the same facts to disciplinary action by a domestic
tribunal;

o therefore regulation 11 of the Public Service (Disciplinary Proceedings)

Regulations, 1970 is not ultra vires article 7(2) of the Federal Constitution
;

o it was not improper for the Public Service Commission to institute

disciplinary proceedings in this case as the exercise by the Public Service
Commission of its powers is not by way of punishment but rather to
enforce a high standard of propriety and professional conduct;

o there was no res judicata in this case as the parties were different and
the facts were relevant to the accusation of a different character, that is,
misconduct.

49
 It appears that there have been a different
attitude of the court in Zakaria Abdul
Rahman v Ketua Polis Negara [2001]
 Involved a chief inspector who had
relationship outside his marriage. He wanted
to get married with this lady
 He applied from his superior but was rejected
and he was reminded to end his relationship
with this lady. He continued his relationship
and the disciplinary proceeding was taken
against him for insubordination
50
 Subsequently he married with this lady and another disciplinary
action was taken against him and he was dismissed from his job
 He appealed to the High Court on the ground that this is contrary
to A7 (2) and it is a violation of the freedom of religion
 The court referred to the Harry Lee Wee where the court
distinguished the two versions of DJ
1- the constitutional version which is narrower ‘tried again’
2- the common law DJ which was argued by the court to be wider
 Based on that approach, the court decided that it is sufficient to
amount to DJ

51
 HARRY LEE WEE v LAW SOCIETY OF
SINGAPORE [1985] 1 MLJ 1
 Privy Council (Singapore) held that: the
doctrine of autrefois convict and acquit is
applicable to disciplinary proceedings under a
statutory code by which a profession is
governed.

52
 Dato' Haji Kusaini Bin Haji Hasbullah
(Pengurusi Suruhanjaya Perkhidmatan
Pelajaran, Putrajaya)& Ors v Ali Bin Suman
[2012] 10 MLJ 181
 Facts:
 The Applicant, at the material time when the offence alleged took
place, was a Penolong Kanan Ko-Kurikulum at Sekolah Menengah
Kebangsaan Taman Jasmin 2, Kajang. The Applicant received a
letter dated 5 Mac 2007 from the President of the Disciplinary
Committee of SMK Taman Jasmin 2 that a complaint was made
against the Applicant for molesting three female students. The
Applicant was required to provide a written representation within
seven days from the date of receipt of the said letter

53
 The Applicant had replied via a letter dated 8 Mac 2007
informing the school of his regret of the incident and he
also made an undertaking not to repeat the offence.
 The Applicant also attended a disciplinary inquiry held at
the Hulu Langat Education Department on 9.3.2007.
 At the inquiry, the Applicant had admitted the
allegations made against him. Subsequently, the
Disciplinary Committee of the Hulu Langat Education
Department issued a letter, informing the Applicant that
his conduct was in breach of the Public Officers (Conduct
and Discipline) Regulations 1993
 The Applicant was given a stern warning (AMARAN
KERAS) and was later transferred to another school.

54
 Three years later, another investigation was held against
the Applicant pursuant to a report received regarding his
improper conduct to sexually harassed three female
students.
 A show cause letter dated 9 August 2010 was issued to the
Applicant.
 By a letter dated 2 August 2010, the Applicant made his
representation against the show-cause letter in which he
informed the 1st Respondent of the previous disciplinary
action against him and enclosed for the reference of the
1st Respondent.
 Through a letter, the 2nd Respondent informed the
Applicant that the Applicant had failed to exculpate
himself from the charge and decided that he shall be
dismissed with effect from 18 August 2010.
55
 The Applicant, being unsatisfied with the said
decision, applied to this court for an order of
certiorari to quash the said decision, on the
ground that there was double jeopardy as he
had been punish twice for the same offence,
arising out from the same facts.

56
 High Court:
 After having carefully perused all the relevant
documents exhibited, the court is satisfied that the
substance of the two charges made against the
Applicant in both proceedings, were in respect of
gross and indecent conduct of the Plaintiff towards
the three female students.
 The Applicant had been punished twice for the same
charges by the disciplinary body at the Hulu Langat
Education Department, and also the disciplinary body
at the Education Commission.
57
 In all fairness and justice, there should only
have been only one charge against the
Applicant
 To charge him twice for the same conduct
clearly goes against the spirit and intent of
the Article 7 of the Federal Constitution.
 The court allowed the Applicant's application
and the decision to dismiss the Applicant from
public service is hereby quashed.

58
 Syed Alwee bin Syed Mansor v Panglima
Tentera Laut Diraja Malaysia & Anor [2018]
 Facts: The applicant commenced his employment with TLDM on 15
August 1996 and was supposed to retire on 14 August 2017. On 7
June 2014, a urine specimen was taken from the applicant and the
chemist report confirmed that the applicant’s urine specimen was
positive for dextromethorphan and dexthorphan. The applicant was
then charged with two charges of misconduct. During the hearing on
6 February 2015, the applicant pleaded guilty to both charges and
was convicted and sentenced with a fine of 14 days’ salary
amounting to RM2,335.07 as well as a reprimand. In May 2015, the
application for termination of the applicant was not approved by the
former first respondent, however on 23December 2016, the
application for termination of the applicant was approved by the
first respondent.

59
 The applicant’s ground to impugn the
decision of the respondents were primarily
premised on the issue of illegality:
 One of the grounds is: that the applicant had
become a victim of double jeopardy due to
the reason that the former first respondent
had rejected the applicant’s termination
under reg 61(1)(j) of the 2013 Regulations.

60
The High Court dismissed the application and
held among others: the principle of double
jeopardy only applies in criminal conviction,
whereby a person who has been acquitted or
convicted of an offence by the court shall not be
tried again for the same offence. In the present
case, the applicant is not being tried on the
same charges as in the 2014 charges but
challenging his termination from the TLDM.

61
ARTICLE
8 AND 9