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Lawyer: Accused deprived of right to fair trial

 | June 19, 2017

DAP's M Kulasegaran is to mount a challenge to law enacted by Parliament which he says gives no opportunity to cross-examine the person who did ‘deposition’.

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PETALING JAYA: The lawyer for a Tamil writer charged with allegedly smuggling a migrant wants to challenge a legislation enacted by Parliament.

The legislation was invoked by the prosecution in bringing two depositions against the writer, Vigneswary Murugaiah, who frequently writes about the plight of poor Tamils around the world.

Ipoh Barat MP M Kulasegaran, who is in the team representing her, said Section 61A of the Anti-Trafficking in Persons & Smuggling of Migrants Act 2007 is “unfair, unreasonable, oppressive and prejudicial”, and should be struck down.

He said the legal team has filed a constitutional challenge in front of Shah Alam High Court Judge Ghazali Cha to refer the section to the Federal Court.

Vigneswary was arrested on Dec 16, 2015, for allegedly smuggling a migrant under Section 26A of the act.

“However, about one year after she was charged, the prosecution suddenly brought in two depositions as evidence pursuant to Section 61A of the Act,” Kulasegaran, who is also a DAP vice-chairman, said in a statement.

“This is totally unfair and unconstitutional as it deprives Vigneswary of her right to a fair trial as she will not be accorded the 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.”

Section 61A, which deals with the admissibility of a deposition in relation to a trafficked person or smuggled migrant who cannot be found, provides for the deposition to be admissible as prima facie evidence in the presence or absence of the person charged.

Kulasegaran said the lawyers suggested three questions to be referred to the Federal Court.

The first is whether Section 61A contravenes the Federal Constitution, and the second is whether the right to cross-examine a witness in a criminal trial is a fundamental right of every citizen, he said.

The third question is on whether Parliament has powers to make laws like Section 61A which they say usurps the power of the judiciary.

During the hearing on June 16, Kulasegaran had argued, among other things, that the prejudicial effect of Section 61A outweighs the probative value of the evidence.

He also said the section was contrary to Article 8 of the Federal Constitution which provides for equality.

“Even for more brutal offences like murder and rape, the accused are entitled to cross-examine the witnesses,” he said, adding that Vigneswary was on the other hand not allowed to do so.

He said this was a clear breach of natural justice.

Kulasegaran also said judicial powers cannot be taken away or controlled, as provided for under Article 121 of the Federal Constitution.

“We have a written constitution and thus our country is that of a constitutional supremacy unlike the United Kingdom wherein they practise parliamentary supremacy.”

The prosecution, led by Mohamad Abazafree Mohd Abbas, argued that the weight of the deposition is still to be determined by the presiding judge, and that it is a process that has nothing to do with the separation of powers, he said.

The case has been fixed for decision on July 25.


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