Court: Out-of-court testimony is legal to prove human trafficking

M-Vigneswari-KulasegaranSHAH ALAM: The High Court today ruled as constitutional a provision in the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 that is deemed to deny an accused person a fair trial.

“Section 61 A of the law is a special legislation and the court must give effect to the intention of Parliament,” Justice Ghazali Cha ruled in dismissing the challenge brought by housewife M Vigneswari.

Ghazali said all was not lost for Vigneswari as she could challenge the veracity of testimonies by two foreigners during trial.

“It is for the court to decide how much weight to be given to the depositions and whether it was taken under threat or inducement,” he said.

The judge said although the out-of-court testimony was prima facie evidence, the burden was still on the prosecution to prove their case beyond reasonable doubt.

“She will not be prejudiced and as such I rule the law as constitutional,” he said.

The judge then fixed trial for two days from Sept 25.

In what is seen as a first-of-its-kind case, Vigneswari filed the constitutional challenge as she said Section 61 A of the law was in breach of Articles 5 and 8 of the Federal Constitution, the Evidence Act and the Criminal Procedure Code.

This provision allows the prosecution to record an out-of-court testimony, made under oath, from victims and witnesses for later use in court.
Such a statement from foreigners, who have been deported, is prima facie evidence that can be used to prove the prosecution’s case.

Two Sri Lankan men, who were deported to their country of origin, had provided statements last October to implicate Vigneswari, 33.

She was initially charged in the Sepang Sessions Court with trafficking Sri Lankan national Pavilrajh Magenthiran at the KL International Airport in Sepang on Nov 18, 2015.

Subsequently, the case was transferred to the Shah Alam High Court.

In her affidavit in support of her application, she said the testimonies of the two men were taken after she was charged and her lawyers, M Kulasegaran and C R Selva, were denied the right to cross-examine them.

Those found guilty of smuggling migrants can be punished with up to 15 years’ in jail or fined (at the discretion of the court), or both.

Kulasegaran said he had received instructions to file an appeal in the Court of Appeal.