Masoud Rahimi bin Mehrzad v AG

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ,Steven Chong JCA,Belinda Ang Saw Ean JCA
• Judgment Date: 27 March 2024
• Docket Number: Civil Appeal No 1 of 2024
• Court: Court of Appeal (Singapore)

Masoud Rahimi bin Mehrzad and others

and

Attorney-General

[2024] SGCA 11

Sundaresh Menon CJ, Steven Chong JCA and Belinda Ang Saw Ean JCA

Civil Appeal No 1 of 2024

Court of Appeal

Constitutional Law — Judicial review — Constitutional challenge against provisions of statute which had not been brought into force — Whether appellants had standing to challenge constitutionality of law when not yet in force — Whether existence of law on statute books sufficed to establish standing — Post-appeal Applications in Capital Cases Act 2022 (Act 41 of 2022)

Held, dismissing the appeal:

(1) The Court of Appeal's statements in Tan Eng Hong v AG[2012] 4 SLR 476 (“Tan Eng Hong”) that the existence of an allegedly unconstitutional law on the statute books could suffice to show a violation of a constitutional right (and thus to found standing) were made in the context of offence-creating provisions. The true nature of the inquiry was whether and how the law being challenged had actually affected the applicant. In that light, the statements in Tan Eng Hong were irrelevant to the present case, which concerned procedural provisions rather than offences: at [5].

(2) The PACPs were free to bring any application they wished without being affected by the provisions of the PACC Act, which were not in force. Any application that they made would not be affected by the PACC Act coming into force in the future, because the Act only applied to applications filed after it was brought into force. The PACPs had not and would not be affected by the impugned provisions, and therefore had no standing to bring the constitutional challenge: at [6] to [8].

[Observation: It was imperative to note that the PACC procedure concerned a very limited category of applications, namely, those brought by PACPs who had already had the merits of their cases ventilated at trial and on appeal. Moreover, the PACC procedure did not affect applications to review a concluded appeal, which were subject to a separate and independent procedure under s 394H of the Criminal Procedure Code 2010 (2020 Rev Ed). The PACC procedure was designed to cover situations where new material was raised that could not have been brought at trial or on appeal, and was not a means to re-open the merits of the case generally. In that light, the expectation of what due process required for a PACP who had exhausted all his avenues of appeal was very likely to be different when compared to the very different situation of an accused person who was being tried for the first time: at [10] to [13].]

Case(s) referred to

Karaha Bodas Co LLC v Pertamina Energy Trading Ltd [2006] 1 SLR(R) 112; [2006] 1 SLR 112 (refd)

Tan Eng Hong v AG [2012] 4 SLR 476 (refd)

Facts

This was an appeal against the decision of the General Division of the High Court in Masoud Rahimi bin Mehrzad v AG[2023] SGHC 346 to strike out a constitutional challenge against two provisions of the Post-appeal Applications in Capital Cases Act 2022 (Act 41 of 2022) (the “PACC Act”) brought by 36 prisoners awaiting capital punishment (“PACPs”). The PACC Act introduced new provisions to the Supreme Court of Judicature Act 1969 (2020 Rev Ed) (“SCJA”) setting out a procedure (the “PACC procedure”) for post-appeal applications in capital cases (“PACC applications”). The PACC procedure required PACPs to apply for permission (“PACC permission”) from the Court of Appeal to make a PACC application.

The provisions challenged by the PACPs were s 60G(7)(d) of the SCJA, which required the Court of Appeal to consider whether a PACC application to be made had a reasonable prospect of success when determining whether to grant PACC permission, and s 60G(8) of the SCJA, which permitted the Court of Appeal to summarily deal with an application for PACC permission without an oral hearing. The PACPs contended that these provisions were inconsistent with Arts 9 and 12 of the Constitution of the Republic of Singapore (2020 Rev Ed) (the “Constitution”).

The General Division of the High Court struck out the constitutional challenge on the ground that the PACPs had no standing, because the PACC Act had not yet been brought into force by notification in the Gazette and was therefore not in operation.

The PACPs appealed, arguing that the very existence of the PACC Act on the statute books sufficed to show that their constitutional rights had been violated such that they had standing to challenge the constitutionality of the provisions.

Legislation referred to

Constitution of the Republic of Singapore (2020 Rev Ed) Arts 9, 12

Criminal Procedure Code 2010 (2020 Rev Ed) s 394H

Post-appeal Applications in Capital Cases Act 2022 (Act 41...