Two foreigners on death row mount challenge against drugs law
Two foreign nationals sentenced to death for drug trafficking are challenging the constitutionality of a provision of the Dangerous Drugs Act 1952 (DDA).
Philippine national Alma Nudo Atenza and Thai national Orathai Prommatat, in their appeals against their sentences, claimed today that Section 37A of DDA violates their fundamental liberties under the Federal Constitution.
Both Atenza and Orathai also claim that the legislature had usurped the power of the judiciary in enacting the DDA...
Two foreign nationals sentenced to death for drug trafficking are challenging the constitutionality of a provision of the Dangerous Drugs Act 1952 (DDA).
Philippine national Alma Nudo Atenza and Thai national Orathai Prommatat, in their appeals against their sentences, claimed today that Section 37A of DDA violates their fundamental liberties under the Federal Constitution.
Both Atenza and Orathai also stated that the legislature had usurped the power of the judiciary in enacting the DDA.
Alma's lawyer, Gopal Sri Ram, told a nine-member Federal Court bench led by Chief Justice Richard Malanjum today that any law must be substantively fair to everyone.
According to Sri Ram, Section 37A on the admission of statements in evidence – which allows double presumption to be applied on an accused person – bypassed a Federal Court decision in 1998 which held that presumptions are oppressive and could not be used.
The provision was introduced to allow the prosecution to rely on presumptions under section 37(d) and 37(da) of the DDA, thereby overruling the Federal Court judgment.
Double presumption applies to possession and trafficking of drugs.
Alma was sentenced to death in 2014 by the Shah Alam High Court for trafficking 2.5kg of methamphetamine into the country.
She claimed that the piece of luggage containing the drugs from Hong Kong was given to her by an African friend.
Orathai, meanwhile, was convicted for being found in a Kuala Lumpur hotel five years ago with 693.4g of cocaine in her possession.
Both were found guilty and had their sentence upheld by the Court of Appeal on the basis of double presumption.
Fundamental liberties
Sri Ram told the Federal Court today that Article 5 of the Federal Constitution on personal liberty does not impose restrictions which can be imposed by the Parliament.
This is unlike Article 10 on freedom of speech, assembly and association, which states that Parliament can by law impose restrictions on such rights.
He added that Section 37A of DDA was seen as encroaching on the judicial sphere, despite Article 74(1) of the Federal Constitution outlining that while Parliament has the power to make laws, the power to declare laws lies with the judiciary.
However, DPP Nik Suhaimi Nik Sulaiman argued that this was not the proper way to challenge the conviction.
Nik Suhaimi said that to challenge the constitutionality of Section 37A, leave has to be obtained from the court, as stipulated under Article 4(4) of the Federal Constitution.
The nine-member bench reserved its decision.
Beside Malanjum, the bench also comprised of Chief Judge of Sabah and Sarawak David Wong Dak Wah, Federal Court judges Ramly Ali, Balia Yusof Wahi, Alizatul Khair Othman, Rohana Yusof, Tengku Maimun Tuan Mat, Abang Iskandar Abang Hashim and P Nakini.
Alma is also represented by lawyer A Sri Murugan, while Orathai is adopting Sri Ram's submission.
