PUTRAJAYA: The Federal Court today heard that Parliament had exceeded its authority when an amendment to a provision in the Dangerous Drugs Act (DDA) 1952 was approved to secure conviction against accused persons charged with trafficking.
Lawyer Gopal Sri Ram said the legislature was only empowered to make laws under Article 74 of the Federal Constitution.
“Parliament has no power to declare a law and the legislature encroached into the judicial sphere,” he said, adding that under Article 121, judicial power was vested solely in the courts.
Sri Ram was submitting before a nine-member bench, chaired by Chief Justice Richard Malanjum, in two appeals by a Filipina and a Thai national, facing the death sentence for drug trafficking.
The prosecution had relied on Section 37A on double presumptions in the DDA, which was passed by Parliament in 2004 to secure their convictions.
The Federal Court in the 1998 case of Muhammed Hassan v Public Prosecutor had held that presumptions could not be used as that would be oppressive and unduly harsh on accused persons.
However, as a result, the government introduced section 37A to allow the prosecution to rely on presumptions under section 37 (d) and 37 (da) of the DDA, thereby overruling the Federal Court judgment.
Sri Ram, who was assisted by A Srimurugan, today said in enacting section 37A, Parliament exercised unauthorised appellate jurisdiction over the Federal Court ruling.
The former retired judge, who is back in legal practice, said what Parliament did by introducing section 37A amounted to reversing the Federal Court judgement in Muhammed’s case and this ran contrary to the constitution.
The Court of Appeal, in 2017, affirmed the findings of the High Court, which sentenced Alma Nudo Atenza to death for trafficking in 2.5kg of methamphetamine at the Kuala Lumpur International Airport in Sepang on Aug 19, 2014.
In the second case, the Court of Appeal in 2017 upheld the death sentence of Orathai Prommatt for trafficking in 693.48gm of cocaine at a hotel in Kuala Lumpur in 2014.
Lawyer Jayaseelan Anthony and Rajpal Singh represented Orathai but they adopted the submission made by Sri Ram.
In both cases, the trial courts held that the women had failed to rebut the presumption of possession and knowledge under section 37(d) and had failed to rebut the presumption of trafficking under section 37 (da).
Both appellants are also arguing that section 37A also violated their constitutional right to life under Article 5.
Sri Ram said it was a requirement in Malaysian law that state action which offended fundamental rights must not only be procedurally, but substantively, fair.
He said the common law right of presumption of innocence cannot be restricted.
“Article 5 includes common law. However, a 2017 Federal Court ruling in Public Prosecutor v Gan Boon Aun was wrongly decided as the apex court relied on European Convention of Human Rights jurisprudence that the right to presumption could be limited.” he said.
Sri Ram said the right to life was absolute, unlike freedom of expression under Article 10, which could be restricted by Parliament.
He said the presumptions relied on in drug cases was unfair as the burden was shifted to the accused persons to prove instead of the prosecution.
Deputy public prosecutor Nik Suhaimi Nik Sulaiman said the appellants should have obtained leave from a single judge as they had mounted a constitutional challenge under Article 4 (3) and (4).
He said Section 37A of the DDA was a valid law as it was federal law passed by Parliament and the section was not against Articles 5 and 8 (equality of law and equal protection of the law).
Chief Judge of Sabah and Sarawak David Wong Dak Wah, Federal Court judges Ramly Ali, Balia Yusof Wahi, Alizatul Khair Osman Khairuddin, Rohana Yusof, Tengku Maimun Tuan Mat, Abang Iskandar Abang Hadshim and Nallini Pathmanathan also heard the appeals.
The court has reserved its judgment. - FMT
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