Filipina to raise constitutional issues in death penalty appeal

Lawyer Gopal Sri Ram, who is appearing for Alma Nudo Atenza, says there will be a challenge to the constitutionality of section 37A of the Dangerous Drugs Act.

PUTRAJAYA: A nine-member Federal Court bench will be assembled early next year to hear an appeal by a Filipina who is facing the death sentence for drug trafficking.

Justice David Wong Dak Wah, who chaired a five-member bench today, allowed the application by lawyer Gopal Sri Ram, who is appearing for Alma Nudo Atenza, on grounds that constitutional issues would be raised.

Wong then adjourned the case to Jan 9 to have the case heard before an enlarged panel.

Sri Ram, who was assisted by A Srimurugan, said there would be a challenge to the constitutionality of section 37A of the Dangerous Drugs Act (DDA) 1952 which allows the court to invoke double presumptions to convict an accused.

Written submissions made available to FMT said the Federal Court in the 1998 case of Muhammed Hassan v Public Prosecutor had held that presumptions could not be used as that would be oppressive.

However, as a result, the government introduced section 37A to allow the prosecution to rely on presumptions under section 37 (d) and 37 (da) of the DDA, thereby overuling the Federal Court judgment.

Alma, in her written submission, said Article 74 (1) of the Federal Constitution only allowed Parliament to make laws but the power to declare law was in the hands of the judiciary.

What Parliament did by introducing section 37A amounted to reversing the Federal Court judgement in Muhammed’s case, she added.

She argued that section 37A also violated her constitutional right to life under Article 5.

The Court of Appeal last year affirmed the 2016 findings of the High Court, which sentenced her to death for trafficking 2.5kg of methamphetamine at the Kuala Lumpur International Airport in Sepang on Aug 19, 2014.

The drugs in 36 packages were found in a hand luggage.

The High Court said Alma, a mother of three, had failed to raise a reasonable doubt on the prosecution’s case.

The court further held that she had failed to rebut the presumption of possession and knowledge under section 37(d) and had failed to rebut the presumption of trafficking under section 37 (da).

However, the defence took the position she was an innocent carrier of the luggage from Hong Kong which was given by an African friend.