PUTRAJAYA: The Federal Court today ruled that Section 61A of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act (ATIPSOM) 2007 is constitutional.
This was declared by a five-member panel chaired by Chief Justice Tun Tengku Maimun Tuan Mat who said the law provision does not contravene the Federal Constitution.
Also on the panel were Chief Judge of Malaya Tan Sri Mohamad Zabidin Mohd Diah as well as Justices Datuk Harmindar Singh Dhaliwal, Datuk Abu Bakar Jais and Datuk Abdul Karim Abdul Jalil.
This came after the law provision was questioned by appellants Tan Sri Ketheeswaran Kanagaratnam and Puan Sri Vivienne Ketheeswaran.
The couple were jointly charged in Klang's Sessions Court for three offences under Section 12 of the Act read with Section 34 of the Penal Code. The couple pleaded not guilty.
They had posed three constitutional questions for the deliberation of the panel.
They questioned whether Section 61A of the Act was unconstitutional, null and void, by vesting judicial power unto itself and if parliament acted in violation of the doctrine of separation of powers under Article 121(1) of the Federal Constitution in deciding the prima facie evidence.
They also questioned whether Section 61A violates the fundamental right to a fair trial guaranteed to an accused under Article 5(1) of the Federal Constitution.
The other question was whether Section 61A violates the right to equality guaranteed to an accused under Article 8 of the Federal Constitution.
Tengku Maimun said they found that Section 61A was objectively fair given the unique circumstances presented by Atipsom cases which involve foreign victims who are brought into the country via illicit means.
"The Atipsom regime in some respects, gives these victims' human rights some level of primacy by facilitating, in appropriate cases, their speedy return home via deposition orders.
"A balance is therefore struck by enabling the taking of their evidence without letting such victims languish pending trial.
"A balance is also struck in the interest of the public in that the prosecution gains an evidential advantage in terms of the deposition.
"Yet, at the same time, the accused is allowed every latitude to question and challenge the evidence in the deposition by calling rebuttal evidence and to otherwise cross-examine all the other prosecution witnesses.
"Thus, we agree with the respondent (public prosecutor) that Section 61A is not violative of Article 5(1)," she said.
She also said Section 61A(1) essentially provides that any deposition of a trafficked person or smuggled migrant who has been deported shall, without further proof, be admitted as prima facie evidence of any fact stated in the deposition.
She added that the right of the accused to a fair trial must also take into account the rights of the victim and society at large.
"In these circumstances, we remit this case to the High Court in accordance with Section 85(2) of the Court Judicature Act 1964 so that it can make the appropriate orders and directions in accordance with this judgment, and otherwise according to law," she said.
On April 12,2019, the couple were charged with three counts of alleged trafficking their three Indonesian domestic workers and subjected them to forced labour.
They had allegedly committed the offences against the victims, aged between 25 and 41, at a home in Country Heights between Oct 2012 and March 2019.