Monday, June 19, 2017

Media statement by M.Kula Segaran MP Ipoh Barat and DAP National Vice Chairman in Shah Alam Court 19th June 2017

Section 61A of the Anti-Trafficking In Persons & Smuggling Of Migrants Act 2007.
is unfair, unreasonable, oppressive and prejudicial and should be truck down

Mdm Vigneswary Murugaiah, a well-known Tamil writer, who frequently writes about the plight of poor Tamilians all around the world, was arrested on the 16th of December 2015 for allegedly smuggling a migrant under Section 26A of the Anti-Trafficking In Persons & Smuggling Of Migrants Act 2007.

However, about 1 year after she was charged, the Prosecution suddenly brought in 2 depositions as evidence pursuant to Section 61A of the Act. This allows deposition to be taken with or without the presence of the accused and it is prima facie evidence.

This is totally unfair and unconstitutional as it deprives Vigneswary of her right to a fair trial as she will not be accorded to opportunity to cross-examine the person who allegedly did the ‘deposition’. To make things worse, we were already lawyers on record but yet the prosecution did not notify us about the deposition taking place.

Thus, we have filed a constitutional challenge in front of High Court Judge Yang Arif Ghazali Cha to refer this particular Section 61A to the Federal Court. We have suggested 3 questions to be referred to the Federal Court, which are:

a. Is Section 61A of the Anti-Trafficking In Persons & Anti-Smuggling of Migrants Act 2007 contravening the Federal Constitution; and

b. Is the right to cross-examine a witness in a criminal trial a fundamental right of every citizen of Malaysia; and

c. Does Parliament have powers to make laws like Section 61A of the Anti-Trafficking in Persons & Anti-Smuggling of Migrants Act 2007 which usurps the power of the Judiciary

During the hearing on 16.06.2017, M. Kula Segaran the counsel for Vigneswary argued inter alia that the prejudicial effect of Section 61A outweighs the probative value of the evidence and that it was contrary to Article 8 of the Federal Constitution.

Even for more brutal offences like murder and rape, the accused are entitled to cross-examine the witnesses wherelse in this case the accused isn’t allowed, a clear breach of natural justice. M. Kula Segaran also in detail ventilated the Semenyih Jaya case, and that Judges should jealously guard the judicial powers of the Court.

He further went on and argued that per Article 121 of the Federal Constitution, our judicial powers can’t be taken away or controlled with. We have a written constitution and thus our country is that of a constitutional supremacy unlike the United Kingdom wherein they practice parliamentary supremacy.

It is now upon the Judges to trigger the inner conscience of the Courts which Parliament has to abide. The right to cross-examine is a vested inalienable right to an accused.

The Prosecution led by Tuan Mohamad Abazafree bin Mohd Abbas, argued that cross-examination is a criminal procedure created by Parliament, and is a specific provision. He argues that the weight of the deposition is still to be determined by the presiding Judge. He further went on to say that it is a only a process and has nothing to do with the separation of powers.

Section 61A of the Anti-Trafficking In Persons & Smuggling Of Migrants Act 2007.
is unfair, unreasonable, oppressive and prejudicial and should be truck down

The case has been fixed for decision on the 25th of July 2017.

Saturday, June 10, 2017

 Media statement by M. Kula Segaran MP Ipoh Barat and DAP national Vice Chairman in ipoh on 9th June 2017

Member of Parliament challenge the constitutionality of Section 9(1) of Peaceful Assembly Act 2012
On 14.10.2016, Thomas Su the MP for Ipoh Timur was charged under Section 9(1) and punishable under Section 9(5) of Peaceful Assembly Act 2012. The maximum fine under this section is RM10,000. If found guilty and fined more than RM two Thousand (2000.00) he will be disqualified as a Member of Parliament.

Thomas Su was charged for the same offence in 2013 and subsequently the prosecution withdraw the charge. Late last year he was recharged for the same offence.

After perusing the charge, the Peaceful Assembly Act 2012 and our Federal Constitution we are of the opinion that particularly Section 9(1) and Section 9(5) of the Peaceful Assembly Act 2012 is unconstitutional. Thus, we have filed an application pursuant to Section 30 of the Courts of Judicature Act 1964 to refer the constitutionality of this section to the High Court and subsequently to the Federal Court pursuant to Section 84 Courts of Judicature Act 1964.

There are two conflicting decisions in the Court of Appeal, Public Prosecutor v. Yuneswaran [2015] 9 C.L.J. 873 and Nik Nazmi bin Nik Ahmad v Public Prosecutor [2014] 4 M.L.J 157 wherein in the former it was held that the particular sections are constitutional whereas in the latter it was held that the particular sections are unconstitutional.

Our Government has also pledged to the United Nation Human Rights Council that our Government believe is strongly in upholding freedom of assembly but in reality, they do not adhere with it.

The AG was represented by DPP Muhammad Fauzi bin Md Yusof and was presided by Sessions Judge Sessions Judge- NORASHIMA BINTI KHALID

The case was adjourned to allow the AG to file the necessary affidavit in reply before the case is fixed for Hearing proper.

The lawyers whom assisted in this case today were M. Kula Segaran, N. Selvam, Miss P.Kala Malar and A. Vemal.

M. Kula Segaran
MP for Ipoh Barat