Parliament can only make law, has no power to declare it, federal court hears

Parliament exceeded its legislative power when amendment to a provision in the Dangerous Drugs Act 1952 (DDA) was approved to secure conviction of accused person charged for drug trafficking, the Federal Court heard today.

Lawyer Datuk Seri Gopal Sri Ram argued that Article 74 (1) of the Federal Constitution empowered Parliament to only make laws.

“Parliament has no power to declare law. That is a judicial power within the sole and exclusive province of the courts,” he submitted before a nine-man Federal Court bench today.

Sri Ram said Parliament exceeded its legislative power by encroaching into the judicial sphere when it enacted section 37A of the DDA in 2004 to overrule a decision of the Federal Court in a 1998 case of Muhammed bin Hassan v Public Prosecutor.

Section 37A of the DDA allows a court to invoke the presumptions of possession and trafficking of drugs to convict an accused.

The Federal Court in the Muhammed Hassan vs Public Prosecutor case, had held that the use of double presumption was unduly harsh and oppressive.

Sri Ram said section 37A of the DDA was unconstitutional as it violated Article 5 of the Federal Constitution which guaranteed each person his right to life and personal liberty.

He was submitting in the appeals brought by a Filipino woman, Alma Nudo Atenza, and Thai national Orathai Prommatat, who were appealing against their convictions and death sentence for drug trafficking.

In both cases, the prosecution had invoked double presumption to secure the women’s conviction.

Deputy public prosecutor Datuk Nik Suhaimi Nik Sulaiman said section 37A of the DDA was a valid law as it was legally enacted by Parliament under Article 74 of the Federal Constitution and that section (section 37A) was in compliance with Article 5 and Article 8 of the Federal Constitution.

He said the appellants’ matter involved constitutional issues and they should mount a challenge under Article 4 (3) and Article 4 (4) of the Federal Constitution by seeking leave from a single Federal Court judge.

Chief Justice Tan Sri Richard Malanjum who chaired the bench subsequently reserved the court’s judgment to a date to be fixed.

The other judges presiding were Chief Judge of Sabah and Sarawak Datuk David Wong Dak Wah and Federal Court judges Tan Sri Ramly Ali, Datuk Seri Balia Yusof Wahi, Datuk Alizatul Khair Osman Khairuddin, Datuk Rohana Yusuf, Datuk Tengku Maimun Tuan Mat, Datuk Abang Iskandar Abang Hashim and Datuk Nallini Pathmanathan.

Alma was charged with trafficking 2.5kg of methamphetamine at the KL International Airport in Sepang on August 19, 2014 while Orathai was accused of trafficking 693.4g of cocaine in a room of the Arena Star Luxury hotel in Jalan Hang Lekiu in Kuala Lumpur on July 1, 2014.

Both women were found guilty by the High Court and their respective appeals were dismissed by the Court of Appeal in 2015 and 2016. — Bernama