Law don argues in inmates’ appeal that parts of Misuse of Drugs Act are unconstitutional

A law don argued before the Court of Appeal on May 7 that provisions in the Misuse of Drugs Act (MDA), which place the onus on the accused person to rebut presumed facts, are unconstitutional.

Assistant Professor Marcus Teo from the National University of Singapore, who is also a practising lawyer, was arguing for four convicted drug traffickers in their appeal.

He led the oral arguments alongside Mr Eugene Thuraisingam and Mr Suang Wijaya.

The High Court dismissed the death row inmates’ constitutional challenge in 2022.

Prof Teo argued that the MDA presumptions infringe the fundamental rules of natural justice, which include the presumption of innocence.

But Deputy Attorney-General Goh Yihan countered that presumption of innocence is not provided for in the Constitution, and thus the MDA presumptions cannot be invalidated for being unconstitutional.

After hearing more than three hours of arguments, the five-judge court, led by Chief Justice Sundaresh Menon, reserved judgment. The court will give its decision at a later date.

The case centres on legal presumptions in the MDA that impose a burden of proof on the accused person to rebut them once the facts triggering the presumptions have been proved by the prosecution.

These are presumptions concerning trafficking, as well as possession and knowledge of illicit drugs.

For instance, any person who is proved to be in possession of more than a specified quantity of drugs – such as 2g of heroin – is presumed to be trafficking in the substance unless it is proved otherwise.

The law also states that any person who is proved to have had drugs in his possession is presumed to have known the nature of the drugs until the contrary is proved.

At the appeal hearing, the arguments from both sides revolved around the landmark case of Ong Ah Chuan in 1980, where the Privy Council rejected the argument that the presumption of trafficking was unconstitutional.

The Privy Council was Singapore’s final Court of Appeal until 1994.

The decision, delivered by Lord Diplock, rejected Ong’s argument that the presumption of trafficking was in conflict with the presumption of innocence, which was a fundamental human right protected by the Constitution.

The Privy Council held that the presumption of trafficking which, upon proof of certain facts, shifted the burden of proof to the accused and could be rebutted on a balance of probabilities, did not contravene Articles 9 and 12 of the Constitution.

The bulk of Prof Teo’s submissions dealt with Article 9, which enshrines the right to life and liberty, and encompasses the right to a fair trial.

He argued that the Ong decision sets out the fundamental rules of natural justice, including the presumption of innocence, which requires the prosecution to prove all elements of the offence beyond reasonable doubt.

He added that legal presumptions, which state that a fact is to be presumed unless the contrary is proved, contravene the fundamental rules of natural justice.

He argued that accused persons are deprived of their life or liberty when a conviction secured by a legal presumption is for an offence carrying mandatory sentences of death or imprisonment.

The Deputy Attorney-General said the MDA presumptions are ultimately a rational and proportionate legislative response to the consequences of drug offences on society.

Mr Goh argued that while the presumption of innocence was a bedrock principle of the criminal justice system, it is not provided for in the Singapore Constitution, whether explicitly or implicitly.

He added that the presumption of innocence is not absolute, even in jurisdictions that have constitutionally enshrined it.

He argued that even if the court finds that the presumption of innocence has constitutional status, the MDA presumptions are compatible with the presumption of innocence.

This is because the prosecution continues to bear the legal burden of proving the guilt of the accused person beyond reasonable doubt.

The four inmates – Jumaat Mohamed Sayed, Lingkesvaran Rajendaren, Datchinamurthy Kataiah and Saminathan Selvaraju – were sentenced to death between 2015 and 2018.

Their appeals against conviction and sentence were dismissed between 2016 and 2020.

Source: The Straits Times © SPH Media Limited. Permission required for reproduction.

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