onIn a landmark decision, the bench led by Chief Justice Tan Sri Richard Malanjum declared section 37A of the DDA unconstitutional as it violated Article 5 read with Article 8 of the Federal Constitution. — Picture by Shafwan Zaidon
Article 5 states that no one shall be deprived of his life or personal liberty while Article 8 states all persons were equal before the law and entitled to equal protection of the law. The effect of section 37A, on the operation of the two presumptions was that once the prosecution proves that an accused person had the custody and control of the drugs and the accused is presumed to have possession and knowledge of the drug. The “deemed possession” is then used to invoke a further presumption of trafficking the drugs.
“In the light of the seriousness of the offence and the punishment it entails, we find that the unacceptably severe incursion into the right of the accused under Article 5 fails to satisfy the requirement of proportionality housed under Article 8 ,” he said. Atenza and Prommatat were ordered to serve the jail term from the date of their arrest respectively on August 19, 2014 and July 17, 2014.
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