INTRODUCTION

Citation(2013) 25 SAcLJ 651
Published date01 December 2013
Date01 December 2013

Constitutionalism and Criminal Justice

1 It gives us great pleasure to pen the introduction to this set of essays which discusses the impact of constitutionalism or human rights on the shape of the criminal justice system. The common law legal tradition developed in the absence of enforceable constitutional or human rights. With the advent of constitutionalism in the common law world, common law jurisdictions have had to come to terms with the need to assess the rules surrounding the criminal justice system according to constitutional or human rights norms. Two recent examples of a judiciary placing limits on legislative power to create criminal offences are:

(a) Naz Foundation v Government of NCT of Delhi,1 where the Delhi High Court struck down s 377 of the Indian Penal Code2 to the extent that it criminalised private homosexual conduct between consenting adults on the basis that it infringed Arts 14 (equal protection), 15 (prohibition of discrimination on grounds of religion, race, caste, sex and place of birth) and 21 (protection of life and personal liberty) of the Indian Constitution.

(b) Mwenda v Attorney-General,3 when the Constitutional Court of Uganda struck down the offence of sedition for infringing the right to freedom of speech and expression, and freedom of the press and other media.

2 Concurrently, the decades since the Second World War have seen the rise of various United Nations conventions and regional human rights treaties which influence ideas about international “best practices” not only in that sphere but also at the level of domestic substantive criminal law, criminal investigation, procedural requirements for trials, sentencing of offenders, and treatment of prisoners. The discourse can no longer be confined within the jurisdiction of each state. Few, if any, states deny the need to comply with the Universal Declaration of Human Rights 1948,4 which became the foundation for subsequent regional instruments such as the European Convention on Human Rights, and these together inspired the constitutional provisions on human rights in many Commonwealth countries.

3 What seems to be emerging is a broad international consensus on what a civilised system of criminal justice ought to look like. The first set of essays examines the development of rights consciousness in criminal justice in selected Commonwealth countries (Canada, Hong Kong, India, South Africa and the UK) as well as in the field of transnational and international criminal law.

4 The use of Commonwealth judicial precedent in domestic litigation is likely to continue to increase.5 This is not surprising as Commonwealth precedent is highly relevant to Singapore. First, many Commonwealth jurisdictions, like Singapore, have justiciable human rights provisions found in their Constitutions such that any inconsistent law may be held to be invalid. Even the UK's traditional approach of parliamentary sovereignty had to change with the enactment of the Human Rights Act 19986 which made the European Convention of Human Rights domestically applicable. The courts in the UK are now given a power to declare a law enacted by Parliament as being incompatible with the European Convention.

5 Secondly, Commonwealth jurisdictions share a common law heritage and their decisions may be traced to a similar understanding of

the nature and function of the criminal law. Although there is perhaps greater affinity between Commonwealth jurisdictions which share very similar criminal legislation—an example being the almost identical Penal Codes and Evidence Acts in Singapore and India—even those which have a substantially different code, like Canada, or those which kept to an essentially common law system of criminal law—examples being the UK and Hong Kong—often...

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