Mdm Vigneswary Murugaiah, a well-known Tamil writer, who frequently writes about the plight of poor Tamilians all around the world, was arrested on the 16th of December 2015 for allegedly smuggling a migrant under Section 26A of the Anti-Trafficking In Persons & Smuggling Of Migrants Act 2007.
However, about 1 year after she was charged, the Prosecution suddenly brought in 2 depositions as evidence pursuant to Section 61A of the Act. This allows deposition to be taken with or without the presence of the accused and it is prima facie evidence.
This is totally unfair and unconstitutional as it deprives Vigneswary of her right to a fair trial as she will not be accorded to opportunity to cross-examine the person who allegedly did the ‘deposition’. To make things worse, we were already lawyers on record but yet the prosecution did not notify us about the deposition taking place.
Thus, we have filed a constitutional challenge in front of High Court Judge Yang Arif Ghazali Cha to refer this particular Section 61A to the Federal Court. We have suggested 3 questions to be referred to the Federal Court, which are:
a. Is Section 61A of the Anti-Trafficking In Persons & Anti-Smuggling of Migrants Act 2007 contravening the Federal Constitution; and
b. Is the right to cross-examine a witness in a criminal trial a fundamental right of every citizen of Malaysia; and
c. Does Parliament have powers to make laws like Section 61A of the Anti-Trafficking in Persons & Anti-Smuggling of Migrants Act 2007 which usurps the power of the Judiciary
During the hearing on 16.06.2017, M. Kula Segaran the counsel for Vigneswary argued inter alia that the prejudicial effect of Section 61A outweighs the probative value of the evidence and that it was contrary to Article 8 of the Federal Constitution.
Even for more brutal offences like murder and rape, the accused are entitled to cross-examine the witnesses wherelse in this case the accused isn’t allowed, a clear breach of natural justice. M. Kula Segaran also in detail ventilated the Semenyih Jaya case, and that Judges should jealously guard the judicial powers of the Court.
He further went on and argued that per Article 121 of the Federal Constitution, our judicial powers can’t be taken away or controlled with. We have a written constitution and thus our country is that of a constitutional supremacy unlike the United Kingdom wherein they practice parliamentary supremacy.
It is now upon the Judges to trigger the inner conscience of the Courts which Parliament has to abide. The right to cross-examine is a vested inalienable right to an accused.
The Prosecution led by Tuan Mohamad Abazafree bin Mohd Abbas, argued that cross-examination is a criminal procedure created by Parliament, and is a specific provision. He argues that the weight of the deposition is still to be determined by the presiding Judge. He further went on to say that it is a only a process and has nothing to do with the separation of powers.
Section 61A of the Anti-Trafficking In Persons & Smuggling Of Migrants Act 2007 is unfair, unreasonable, oppressive and prejudicial and should be truck down.
The case has been fixed for decision on the 25th of July 2017.