Section 61A of ATIPSOM is constitutional, preserving judicial power and fair trial rights while allowing depositions as prima facie evidence.

JUDGMENT

Tengku Maimun Tuan Mat CJ:

Introduction

[1] The appellants are two accused persons jointly charged in the Sessions Court at Klang for three offences under s 12 of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 [Act 670] ('ATIPSOM') read with s 34 of the Penal Code. They pleaded not guilty to the charges and sought to challenge the constitutionality of s 61A of ATIPSOM which relates to deposition of trafficked person or smuggled migrant.

[2] The Sessions Court transmitted the case to the High Court. The High Court however, decided the constitutional questions itself and dismissed the appellants' motion to transmit the special case to the Federal Court. On appeal, and upon agreement by both parties, the Court of Appeal set aside the High Court decision and ordered the High Court to transmit the special case to the Federal Court. Hence the present special case which is transmitted principally in accordance with ss 30 and 84 of the Courts of Judicature Act 1964 ('CJA 1964').

[3] For completeness, s 12 of ATIPSOM reads as follows:

"Offence of trafficking in persons

12. Any person, who traffics in persons not being a child or not being a person who is unable to fully take care of or protect himself because of a physical or mental disability or condition, commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding twenty years, and shall also be liable to fine."

[4] The three charges allege that in various years, the appellants had the common intention to traffic (in contravention of the said s 12) three different persons all of Indonesian origin. The first charge relates to one Anmuni Maria ('Anmuni') in 2012 to 2019; the second charge to one Fransisaka ('Fransisaka') in 2014 to 2019; and the third to one Yani Tri Anda ('Yani') in 2018 to 2019. For convenience, Anmuni, Fransisaka and Yani shall collectively be referred to as the 'Victims'.

[5] According to the appellants, as is required by s 51A of the Criminal Procedure Code (' CPC '), the respondent had prior to trial, duly delivered certain documents to the appellants for use in their defence. One of these documents are the respective Victims' depositions recorded under s 61A of the ATIPSOM. These depositions form the crux of this challenge as it is the appellants' position that the said s 61A is unconstitutional, void and of no effect. That said, these depositions are nowhere to be found in the record of appeal or any of the documents forming the basis for this reference. In any case, the questions raised in this reference are more of law than of fact.

[6] The appellants advance the following three constitutional questions ('Questions') for our deliberation, namely (and as shortened):

"Question 1

Whether s 61A of ATIPSOM is unconstitutional, null and void, by vesting judicial power unto itself, Parliament acted in violation of the doctrine of separation of powers under art 121(1) of the Federal Constitution in deciding the prima facie evidence?

Question 2

Whether s 61A of ATIPSOM violates the fundamental right to a fair trial guaranteed to an accused under art 5(1) of the Federal Constitution , thus is unconstitutional, null and void?

Question 3

Whether s 61A of ATIPSOM violates the right to equality guaranteed to an accused under art 8 of the Federal Constitution , thus is unconstitutional, null and void?".

[7] For easier comprehension and unless expressed or implied otherwise, any reference in this judgment to "sections" shall be taken to mean reference to that of the ATIPSOM and any reference to Article/Articles to that of the Federal Constitution (' FC ').

Submissions

General Observations

[8] Before setting out the crux of the submissions of the respective parties, we think that the three questions may actually be grouped into two simpler points.

[9] The first point, which we shall refer to as the "Judicial Power Argument" seeks to argue that Parliament has, by enacting s 61A, relegated unto itself and in the s