Source: Free Malaysia Today
PUTRAJAYA: A Fijian woman who is facing a drug trafficking charge today failed in her bid to challenge the legality of the mandatory death sentence for the offence.
A three-member Court of Appeal bench, chaired by Mohtarudin Baki, dismissed Christin Nirmal’s appeal to refer the matter to the Federal Court.
Mohtaruddin did not provide grounds for refusing Christin’s appeal to refer the case to the Federal Court under Section 84 of the Courts of Judicature Act (COJA) 1964.
Christin, 30, is claiming that the 1983 amendment to the Dangerous Drugs Act (DDA) 1952 that removed the judge’s discretion to either impose the capital punishment or jail term was unconstitutional.
After 1983, judges must impose the death sentence once found guilty of trafficking
The mother of three is charged with trafficking 1.5kg of methamphetamine at the Kuala Lumpur International Airport in Sepang at 5.45pm on Jan 25, 2015.
Before the trial commenced at the Shah Alam High Court last year, she filed the challenge that only judges determine the scale of punishment for criminal offences.
Christin filed the application under section 84 of COJA to have the matter determined first by referring it to the Federal Court before the trial could begin.
However, trial judge Ghazali Cha refused the reference application on March 31 last year and an appeal was filed in the Court of Appeal.
The prosecution began its case in April and last month Christin was called upon to enter her defence.
Her lawyers then asked Ghazali to suspend proceedings pending the outcome of Christin’s appeal.
Today, government lawyer Awang Armadajaya Awang Mahmud submitted that the matter could not be heard as Christin’s trial was not over yet.
He said the mandatory death sentence issue was already decided by the Privy Council in 1983 and was now binding on the Court of Appeal.
Prior to 1985, the apex court for criminal appeals was the London-based Privy Council.
Awang Armadajaya said the basic structure doctrine that certain fundamental features in a written constitution cannot be altered, even with approval from two-thirds of the members of the legislature, was only recognised in some Federal Court decisions.
“Our basic structure follows the Westminster model and is not as in the separation of powers concept, as in the United States of America,” he added.
He said to invite the court to determine whether Parliament had power to legislate amounted to the judicial legislation offending the doctrine of separation of powers among the executive, legislature and judiciary.
Awang Armadajaya said the appellant should file an application straight to the Federal Court under Article 4 (3) and (4) if she was stating that it was unconstitutional for Parliament to amend the DDA in 1983.
Meanwhile, lawyer Gopal Sri Ram said the amendment was unconstitutional because it went against the separation of powers principle.
“The power to determine the measure of sentence after finding an accused guilty of a crime is the exclusive right of judges,” he said.
Sri Ram said an appeal would be filed in the Federal Court.