KUALA LUMPUR – Affidavits by human trafficking victims who are no longer in the country are admissible as court evidence, the Federal Court has ruled.
They will be considered as prima facie evidence, and their being absent does not violate the right of an accused to a fair trial, the five-member panel of the apex court led by Chief Justice Tun Tengku Maimun Tuan Mat said in its summary grounds of judgement released to the media after its ruling today.
The court was ruling on Section 61A of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act (Atipsom) 2007, in which a prominent businessman and his wife had been questioned after being charged with exploiting and using their former Indonesian domestic workers as forced labour.
The couple are former Malaysian Associated Indian Chambers of Commerce and Industry president Ketheeswaran M. Kanagaratnam and his wife Vivienne Khetheeswaran, who were charged in the sessions court on April 12, 2019, under Section 12 of Atipsom with three counts of exploiting Indonesian women and using them as forced labour.
The couple had sought the court’s declaration that Section 61A is unconstitutional and that it violates the doctrine of separation of powers under Article 121(1) of the federal constitution.
Section 61A (1) provides that any deposition of a trafficked person or smuggled migrant, who has been deported, “shall, without further proof be admitted as prima facie evidence”.
The federal court judges rejected Ketheeswaran and Vivienne’s contention, ruling that Section 61A did not infringe on an accused’s rights.
“Prima facie evidence is evidence that can be accepted at face value, in respect of any fact it seeks to prove. Such evidence, however, remains rebuttable and subject to a judicial assessment of weight and credibility.
“Even if a deposition is prima facie evidence of any fact stated within it, it does not ipso facto (by the fact itself) automatically mean that the prosecution has proved a prima facie case.
“Parliament is expressly empowered by the federal constitution itself to enact laws relating to evidence which will necessarily be applied in court.
“Having examined Section 61A by itself and in context, we find that judicial power has in no way been abrogated, curtailed or subjugated to the legislature by any means whatsoever,” Tengku Maimun said in the grounds of judgement.
She added the law was “objectively fair, given the unique circumstances presented by cases under the act which involve foreign victims that were brought into the country via illicit means”.
“The Atipsom regime in some respects, gives these victims human rights some level of primacy by facilitating, in appropriate cases, their speedy return home via deposition orders.
“A balance is struck by enabling the evidence to be taken without letting such victims languish, pending trial, as well in the public interest as for the prosecution to gain an evidential advantage in terms of 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.”
The Federal Court then remitted the case to the high court, for the lower court to make appropriate orders and directions in accordance with the apex court’s judgement.
Together with Tun Maimun on the panel today is Chief Justice of Malaya Tan Sri Mohamad Zabidin Mohd Dian and Federal Court Judges Datuk Harmindar Singh Dhaliwal, Datuk Abu Bakar Jais and Datuk Abdul Karim Abdul Jalil.
Ketheeswaran and Vivienne are accused of committing the exploitation of their domestic workers between October 2012 to March 2019.
If found guilty, the couple stand to face a maximum of 15 years of jail and a maximum fine of RM500,000. – January, 5, 2024