Affidavit by victims can be used in human trafficking cases, says apex court

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Tun Tengku Maimun said Section 61A of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act is not in violation of the Federal Constitution. – Bernama photo

PUTRAJAYA (Jan 5): The Federal Court here today declared that the use of deposition (sworn evidence in an affidavit) by smuggled persons can be admitted as evidence in human trafficking cases.

Chief Justice Tun Tengku Maimun Tuan Mat, in a unanimous decision, said Section 61A of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act (ATIPSOM) which stated 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, is not in violation of the Federal Constitution.

“We find that Section 61A is objectively fair given the unique circumstances presented by ATIPSOM cases which involve foreign victims who are brought into the country via illicit means,” she said.

The panel comprised Chief Judge of Malaya Tan Sri Mohamad Zabidin Mohd Diah and Federal Court judges Datuk Harmindar Singh Dhaliwal, Datuk Abu Bakar Jais and Datuk Abdul Karim Abdul Jalil.

The panel also held that the right of the accused charged under Section 12 of the ATIPSOM Act to a fair trial must also take into account the rights of the victim and society at large.

The panel made the ruling after dismissing a couple’s application to refer to the Federal Court on whether Section 61A of ATIPSOM was unconstitutional, null and void as it violated the doctrine of separation of powers under Article 121(1) of the Federal Constitution.

Justice Tengku Maimun further said, the right to cross-examine was an important aspect of any trial more so in a criminal trial.

“The ability to cross-examine a witness is not always present in every criminal trial such as when it comes to validly admitted hearsay evidence or the ability can be restricted when it comes to certain witnesses,” she added.

According to Justice Tengku Maimun, the ATIPSOM regime in some respect,  gives victims of human rights violations 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 public interest 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.

“We are convinced that Section 61A was enacted for a legitimate legislative purpose and having sufficient nexus to the Parliamentary aim and this section triangulates the rights of the accused, the victims and the public,” she added.

The apex court then remitted the case to the High Court, in accordance with Section 85(2) of the Court Judicature Act 1964, for the lower court to make appropriate orders and directions in accordance with this judgement, and otherwise, according to law.

Businessman Tan Sri K. Ketheeswaran and his wife Puan Sri Vivienne Ketheeswaran were jointly charged in the Klang Sessions Court in 2019 with three counts of trafficking Indonesian women between 2012 and 2019.

Before the trial started, their lawyers mounted a constitutional challenge, leading the sessions court judge to refer the matter to the High Court which in turn sent it to the Federal Court.

Lawyers Datuk Seri K. Kumaraendran, M.Athimulan, Teh See Khoon and Shaarvin Raaj represented the couple, while deputy public prosecutor Datuk Yusaini Amer Abdul Karim, Nahra Dollah, Dhiya Syazwani Azyan Akhir appeared for the prosecution. – Bernama