User:Sgconlaw/Mohammad Faizal bin Sabtu v. Public Prosecutor

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Mohammad Faizal bin Sabtu v Public Prosecutor is a constitutional law case decided in 2012 by the High Court of Singapore. The case concerns the constitutionality of several provisions in section 33A of the Misuse of Drugs Act ("MDA"). The case also clarified key constitutional concepts including judicial power, the Singapore Westminster model and the court's power to sentence.

Mohammad Faizal bin Sabtu (the “Petitioner”) contended that the mandatory minimum and enhanced punishments for convicted drug offenders who were previously admitted to drug rehabilitation centres were unconstitutional. First, he argued that these punishments violated the principle of the separation of powers embodied in the Constitution of the Republic of Singapore ("the Singapore Constitution"). Secondly, he contended that the punishments were excessive and disproportionate, thereby being inconsistent with the right to life and personal liberty encapsulated in Article 9 of the Singapore Constitution. Finally, he submitted that the punishments violated the right to equality before the law under Article 12 of the Singapore Constitution.

The High Court held that the impugned provisions in section 33A of the MDA were constitutional. The court reasoned that the Judiciary's power to select a sentence within the range of punishments prescribed by the Legislature did not contravene the principle of separation of powers. In reaching this conclusion, the court clarified that the power to enact offences and prescribe punishments for their commission was not a judicial power, but a legislative one. The court also rejected the Petitioner's arguments regarding Article 9 because the principle of proportionality in imposing punishments did not apply to the legislative power to prescribe punishments. In addition, the court rejected the Petitioner’s arguments regarding Article 12 because his arguments were entirely misconceived.

Background Facts
Mohammad Faizal bin Sabtu (“the Petitioner”) had pleaded guilty to a number of charges for drug offences brought against him under the Misuse of Drugs Act. The Petitioner had two previous admissions to a drug rehabilitation centre (“DRC”). Therefore, he would have been subject to the enhanced and mandatory minimum punishment of five years’ imprisonment and three strokes of the cane. The Petitioner applied to the High Court for leave to state a Special Case for determination after a similar application to the District Court was rejected. The District Court was then directed to state the following question of law for determination by the High Court:

"Does [section] 33A(1)(a), (d) and/or (e) of the [MDA] violate the Separation of Powers embodied in the Constitution of the Republic of Singapore in requiring the court to impose a mandatory minimum sentence as prescribed thereunder, with specific reference to ‘admissions’ as defined in s 33A(5)(c) of the MDA?"

This question was concerned with the enhanced and mandatory minimum punishments due to previous DRC admissions if a person was convicted under sections 33A(1)(a), (d) and (e) (collectively, the "impugned section 33A MDA provisions").

Submissions of the Petitioner
The Petitioner raised three submissions challenging the constitutionality of section 33A(1)(a) of the MDA, namely:
 * 1) Section 33A(1)(a) amounted to a legislative direction that intruded into the judicial power of sentencing;
 * 2) Section 33A(1)(a) violated Article 12 of the Singapore Constitution in subjecting an offender with two prior DRC admissions to the same treatment as an offender with two prior drug-related convictions; and
 * 3) The prescribed mandatory minimum sentence in section 33A offended Article 9 of the Singapore Constitution as it was "manifestly excessive, disproportionate and arbitrary".

The High Court noted that the submissions of the Petitioner only related to section 33A(1)(a) of the MDA. However, the court stated that its analyses and discussions equally applied to sections 33A(1)(d) and 33A(1)(e) of the MDA.

Legal Principles
The High Court examined the constitutional framework in Singapore, the meaning of judicial power and the court's power to sentence before determining if the impugned section 33A MDA provisions intruded into the principle of separation of powers.

Constitutional Framework in Singapore
The High Court stated that the Singapore Constitution is based on the Westminster model of constitutional government (“the Westminster model”). Under this model, the sovereign power of the State is distributed among three organs of state – the Legislature, the Executive, and the Judiciary. The principle of separation of powers is therefore part of the basic structure of the Singapore Constitution.

The High Court then identified two fundamental differences between the United Kingdom ("UK") Westminster model and the Singapore Westminster model, namely:
 * 1) The UK Westminster model is premised on the supremacy of the UK Parliament, while Singapore’s Westminster model upholds the supremacy of the Singapore Constitution.
 * 2) UK courts have no power to declare an act of the UK Parliament void on the basis that it is unconstitutional.
 * 3) In contrast, Singapore courts may declare an Act of the Singapore Parliament invalid for inconsistency with the Singapore Constitution.
 * 4) The source of judicial power in the UK Westminster model differs from that in Singapore Westminster model.
 * 5) The source of judicial power in the UK courts arises from common law or statute.
 * 6) In Singapore, Article 93 of the Constitution vests judicial power in the Supreme Court of Singapore and “in such subordinate courts as may be provided by any written law for the time being in force”.

The High Court also noted that judicial power is not vested in an entity which is not defined as a “court” under common law. Any attempt to vest judicial power in an entity which does not fulfill the definition of the court under the common law would contravene the principle of separation of powers and would hence be declared unconstitutional.

The meaning of Judicial Power
After examining the constitutional framework of Singapore, the High Court embarked on an examination of the meaning of 'judicial power'. While the Singapore Constitution does not expressly define 'judicial power', the High Court assumed that the expression has a core meaning since it has been in use for 150 years. It perceived that a definition of “judicial power” is necessary to distinguish one constitutional power from another, to ensure that a branch of the government does not encroach upon the functions of another.

The court then considered several cases to determine the meaning of “judicial power”. For example, in Huddart, Parker and Co Proprietary Limited v. Moorehead, Griffith C.J. defined the power of a sovereign authority to decide controversies related to life, liberty or property between its subjects, or between itself and its subjects. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.

From these cases, the High Court observed that there seemed to be a judicial consensus as to what the judicial function encompasses. It stated that the judicial function:
 * 1) is premised upon a conflict between the state and its subjects or between subjects;
 * 2) entails the court to make findings of fact;
 * 3) entails the court to apply the relevant law to the facts;
 * 4) entails the court to determine the rights and obligations of the parties for the purposes of governing their relationship for the future.

The power to sentence or prescribe punishments
After examining the scope of judicial power, the High Court discussed the power to sentence and held that the Legislature possessed the power to prescribe punishments for offences. The court held that it was the Legislature that vests courts with the discretionary power through statute to punish offenders within a range of sentences set by the Legislature.

In reaching this conclusion, the High Court clarified the judicial power to impose punishments. The court examined various common law courts and noted that most of them, including those from Malaysia and Australia, accept and assume that the punishment of offenders to be part of judicial power. However, the court held that the judicial power to punish for criminal guilt was limited to the particular case being held before a judge, citing Barwick C.J. in Palling v. Corfield for support. Barwick C.J. distinguished between two types of powers to punish, namely:
 * 1) The Legislature possessed the power to prescribe the range of penalties, including mandatory ones, for the offences they create; and
 * 2) The Judiciary will impose the sentence according to the statute.

The court also examined academic support for its holdings. Colin Munro pointed out that Montesquieu did not consider the sentencing function to be a facet of judicial power. Judicial power was drawn in terms of finding facts and adjudicating on law. The judge merely pronounces the punishment that the law inflicts for that act. Andrew Ashworth also noted that wide judicial discretion was only a feature of English sentencing in the last hundred years. Therefore, any claim that a wide sentencing discretion belongs to the judiciary is without historical foundation.

Finally, the High Court examined the power to punish in light of the Singapore Constitution. The court viewed the power to prescribe punishments as implicit in Article 9(1) of the Singapore Constitution. Article 9(1) provides that “[n]o person shall be deprived of his life or personal liberty save in accordance with law”. The word “law” in this context includes both common law and statutes. Hence, it held that Article 9 implicitly allowed Parliament to enact criminal laws and prescribe punishments affecting the life or personal liberty of any person convicted by a court.

The High Court concluded that the judicial discretion the judge possesses to determine the sentence imposed on an offender is always subject to the power of Legislature to impose punishments. In the absence of any constitutional provisions to the contrary, the Legislature may prescribe whatever punishment it thinks fit and proper for the offences that it creates. The exercise of such power involves policy considerations that are “beyond the scope of judicial authority”.

Whether MDA intruded into the principle of Separation of Powers
After clarifying the above-mentioned legal principles, the High Court applied the principles to the impugned section 33A MDA provisions. The court held that the impugned section 33A MDA provisions were constitutional for the following reasons, namely:
 * The provisions are neither targeted at particular individuals nor meant to influence outcomes of ongoing judicial proceedings;
 * The Legislature has the power to prescribe the conditions for an offence, and the factors to be taken into account in sentencing; and
 * The provisions did not enable the executive to interfere with judicial power.

General applicability of impugned provisions
First, the High Court held that the impugned section 33A MDA provisions are neither targeted at particular individuals nor meant to influence outcomes of ongoing judicial proceedings. The provisions are applicable generally to all offenders who satisfy the conditions stipulated.

The Legislature has the power to prescribe the conditions for an offence and the factors to be taken into account in sentencing
Secondly, the High Court opined that the Legislature has merely prescribed the conditions that will subject the offender to the enhanced mandated punishments under section 33 of the MDA. While the satisfaction of the conditions trigger the punishments set out in section 33A, this does not violate the principle of separation of powers. The sentencing powers of the courts is derived from legislation, and courts would have to exercise their sentencing powers within the range of legislatively- prescribed punishments. In this case, Parliament merely fixes the minimum punishment and the sentencing discretion still lies with the court. Hence, the legislative prescription of factors for our courts to take into account in sentencing offenders cannot and does not intrude into the judicial power.

The impugned legislation did not enable the Executive to intervene with judicial power
Thirdly, the High Court held that section 33A(1)(a) does not treat a previous DRC admission as a previous conviction. The section only regards a previous DRC admission as an aggravating factor. Therefore, it dismissed the Petitioner's arguments that section 33A(1)(a) effectively treated a previous DRC admission as a previous conviction to impose the enhanced punishments on an offender. The fact that a DRC admission is an executive decision is immaterial and does not equate to the Executive trespassing on the court’s sentencing function.

Further, by treating the previous DRC admissions as an aggravating factor in sentencing under section 33A(1), the High Court opined that Parliament is doing no more than what the courts could have done. The courts would have done the same even if the legislature had not provide for this aggravating factor. The court’s sentencing function originates from legislation and hence, they must adhere to the types of punishment prescribed. Therefore, the legislative prescription of factors for the courts to consider when sentencing offenders does not interfere with judicial power.

Situations where legislative provisions granted the Executive powers that intervene with the courts’ sentencing function
Nevertheless, the High Court recognised that there are Commonwealth cases that held that the legislative provisions granted the Executive powers that intervened with the courts’ sentencing function. Thus, they were ruled as unconstitutional. These cases can be classified as such:


 * 1) Cases where the Executive could select punishment for an accused person post-conviction (“first category”);
 * 2) Laws empowering the Executive to take action having an actual impact on the sentence a court would impose through administrative decisions affecting the charges brought against an accused person (“second category”); and
 * 3) Legislation which enabled the Executive to make administrative decisions which did not affect the charges to be brought against the accused but which impacted the sentence a court of law imposed, but whose decision limited or removed judicial sentencing discretion (“third category”).

The High Court held that the impugned section 33A MDA provisions did not fall into any of these categories because:
 * 1) The impugned section 33A MDA provisions did not fall into the first category because it did not enable the Executive to choose the sentence to be imposed, whether directly or indirectly. It is the court that determines the sentence to be imposed, subject to the mandatory minimum punishments.
 * 2) The impugned section 33A MDA provisions also did not fall into the second category. The provisions did not empower the Executive to affect the actual sentence imposed via administrative decisions directly relating to the charges brought against an accused person.
 * 3) Lastly, the impugned section 33A MDA provision did not come within the third category. The provisions did not allow the Executive to affect the actual sentence imposed via administrative decisions, though such decisions are not directly related to the charges brought against an accused person.

Article 12 Challenge
In his second submission, the Petitioner argued that the impugned section 33A MDA provisions violated Article 12 of the Singapore Constitution because it subjected an individual with two previous DRC admissions to the same treatment as an individual with two previous court convictions.

Article 12(1) states: "All persons are equal before the law and entitled to the equal protection of the law."

The High Court opined that this argument had no weight and "turn[ed] Article 12 on its head". The court reasoned that the Petitioner has enjoyed the benefit of rehabilitation programmes instead of criminal prosecutions for his drug consumption. It stated that if this argument was affirmed, the State will be compelled to prosecute all drug addicts without first providing them of an opportunity to undergo rehabilitation and become “useful and productive members of the community”.

The court’s reasoning was supported by Lord Diplock’s statement in Ong Ah Chuan v. Public Prosecutor. Any differentiation in punishments imposed upon individuals in different classes and its appropriate punishments are questions of social policy. They are to be decided by the Legislature, not the Judiciary: "Provided that the factor which the Legislature adopts as constituting the dissimilarity in circumstances is not purely arbitrary but bears a reasonable relation to the social object of the law, there is no inconsistency with [Article] 12(1)…"

Article 9 Challenge
The Petitioner also argued that the minimum mandatory sentence under sections 33A(1)(i) and 33A(1)(ii) of the MDA was manifestly "excessive, disproportionate and arbitrary". It was alleged that this was inconsistent with Article 9 of the Singapore Constitution. The Petitioner relied on the proportionality principle as articulated in S v. Dodo that “in the field of sentencing… the legislature ought not to oblige the judiciary to impose a punishment which is wholly lacking in proportionality to the crime.”

However, the High Court struck down this argument as the principle of proportionality did not apply to the legislative power to prescribe punishments. The court viewed that all mandatory fixed punishments would otherwise be unconstitutional since they can "never be proportionate to the culpability of the offender in each and every case".

The High Court also opined that the courts should observe the proportionality principle as a general sentencing principle unless there are superseding policy reasons such as deterrence. Nonetheless, whether the courts are obliged to impose a punishment that is disproportionate to the crime is a question of legislative policy and not of judicial power. Even if it was disproportionate, the court must still impose the legislatively-prescribed sentence on an offender.

This holding was criticised in a recent article by Chan Wing Cheong. He labelled this as a positivist approach which did not allow for judicial review of the legality of a mandatory minimum sentence. He argued that the approach, taken at its extreme, meant that even the most serious sentences for the most trivial crimes cannot be reviewed. He viewed this as incorrect. Chan suggested that the courts should recognise the principle of proportionality in reviewing sentences.

Related Case
The holdings in Mohammad Faizal bin Sabtu were reaffirmed in its twin case of Amazi bin Hawasi v. Public Prosecutor. In the latter case, the High Court confirmed the following points:


 * 1) They simply provided that the previous convictions and DRC admissions were just aggravating factors for determining whether the accused was subject to the enhanced punishment regime in section 33A of the MDA in subsequent convictions.
 * 2) There was nothing in the Singapore Constitution that prohibited Parliament from legislatively prescribing conditions which, upon being satisfied, would trigger the application of minimum enhanced punishments.
 * 3) Parliament could not enact a deeming provision which directed the court as to the manner and outcome of the exercise of its judicial power. However, the impugned section 33A MDA provisions did not have this effect.

Books

 * "The Legislature", pp. 299–360.
 * "The Executive", pp. 361–441.
 * "The Judiciary", pp. 505–630.
 * "Constitutional Principles", pp. 155–218.
 * "The Legislature and the Electoral System", pp. 285–359.
 * "The Judiciary", pp. 451–567.
 * "Constitutional Principles", pp. 155–218.
 * "The Legislature and the Electoral System", pp. 285–359.
 * "The Judiciary", pp. 451–567.
 * "The Judiciary", pp. 451–567.