Apex court strikes out double presumptions for drug trafficking convictions

PUTRAJAYA: The Federal Court in a landmark ruling today held that the prosecution could not use the double presumptions in the Dangerous Drugs Act (DDA) to secure the death sentence against traffickers.

A nine-member bench chaired by outgoing Chief Justice Richard Malanjum struck out Section 37A of the DDA as unconstitutional for violating Articles 5(1) and 8(1) of the Federal Constitution.

“The impugned section (37A) is hereby struck out. We hereby quash the convictions and sentences of both appellants under Section 39B of the DDA,” said Malanjum, who delivered the ruling.

As a result, Philippines national Alma Nudo Atenza and Thai citizen Orathai Prommatat escaped the gallows. Their charge was instead reduced to possession of drugs.

Alma was sentenced to 18 years’ jail while Orathai was given 15 years, with the punishment to begin from the date of arrest.

The prosecution had relied on Section 37A in the DDA on double presumptions, which was passed by Parliament in 2004 to secure convictions against traffickers.

It was rooted in the 1998 case of Muhammed Hassan v Public Prosecutor where the Federal Court held that presumptions could not be used as that would be oppressive and unduly harsh on accused persons.

The government introduced Section 37A to allow the prosecution to rely on presumptions under Sections 37(d) and 37(da) of the DDA to overrule the Federal Court judgment.

The trial courts held that Alma and Orathai had failed to rebut the presumption of possession and knowledge under Section 37(d) and the presumption of trafficking under Section 37(da).

Malanjum said the bench was of the view that Section 37A prima facie violates the presumption of innocence since it permits the conviction of an accused despite the possibility of reasonable doubt.

He said an accused charged with trafficking is placed under a legal burden to rebut the presumption on a balance of probabilities.

“It is a grave erosion to the presumption of innocence house in Article 5(1) of the Federal Constitution,” said Malanjum who will retire next week.

He said the application of what may be termed as double presumptions under Section 37(d) and Section 37(da) gives rise to a real risk that an accused may be convicted of trafficking where a significant reasonable doubt remains.

“We consider that Section 37A constitutes a most substantial departure from the general rule which cannot be justified by and is disproportionate to the legislative objectives it serves,” he said.

In light of the gravity of the offence and the punishment it entails, Malanjum said: “We find that the unacceptably severe incursion into the right of the accused under Article 5(1) fails to satisfy the requirement of proportionality housed under Article 8(1).”