A couple of days ago I wrote a post on the legal significance of the Court of Appeal decision in Tan Eng Hong v AG (2012).  The point that I highlighted was on the interpretation of Article 4 of our Constitution.  This is a follow-up post.

There is another significant ruling made by the Court of Appeal in this case and it would have far reaching consequences for other Constitutional cases. 

The Court of Appeal has effectively stated that in some instances, the very existence of an unconstitutional law is sufficient to give rise to the violation of constitutional rights.  The AG was contending that there must be a present prosecution under the particular law before it can be asserted that there was a violation of constitutional rights.  The Court of Appeal has flatly rejected this:

 “At the same time, and for the avoidance of doubt, we state conclusively that we also reject the proposition that a subsisting prosecution under an allegedly unconstitutional law must be demonstrated in every case before a violation of constitutional rights can be shown. A law is either constitutional or it is not. The effects of a law can be felt without a prosecution, and to insist that an applicant needs to face a prosecution under the law in question before he can challenge its constitutionality could have the perverse effect of encouraging criminal behaviour to test constitutional issues. Even though a violation of constitutional rights may be most clearly shown where there is a subsisting prosecution under an allegedly unconstitutional law, we find that a violation may also be established in the absence of a subsisting prosecution. In certain cases, the very existence of an allegedly unconstitutional law in the statute books may suffice to show a violation of an applicant’s constitutional rights.”

Thus, if Parliament enacts a discriminatory criminal offence, a person can challenge the law even though he/she may not have been prosecuted for the offence.  This applies generally to all offences and not merely s.377A.  VK Rajah JA goes on to explain:

“We add that while there is no right not to be prosecuted, there is a right not to be prosecuted under an unconstitutional law. Persons who act in ways that may cause them to be liable under an allegedly unconstitutional law are in the unenviable position of waiting to see whether a prosecution will be brought against them despite the alleged unconstitutionality of the law. The waiting and the uncertainty in itself can be said to be a form of suffering, “

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