SOMETIME in January 2012, a police report was lodged against a suspect in the commission of a corruption offence under section 16(b) of the Malaysian Anti-Corruption Commission (MACC) Act 2009 (the Act). The complainant alleged, among others, that the suspect had exerted undue pressure on him, through telephone and SMS to bribe the police as an inducement to close the investigation into allegations of improprieties in the company of which the suspect was the chairman.

Pursuant to the report, the MACC summoned the complainant to its office to assist in the investigation and to have his statement recorded. Sometime in March 2012, the complainant went to the MACC office to give his statement. He came with his two lawyers.

The lawyers insisted that they be allowed to be present during the recording of their client’s statement, contending that their client had a constitutional right to be represented by counsel. The MACC objected to their presence but owing to the lawyers’ uncompromising insistence and tense situation, the MACC finally relented and allowed them to be present. They were however informed in advance that there might be a need to record their statements as well.

After recording the complainant’s statement, the lawyers were informed orally that they were also required to give their statements in order to assist in the investigation. The lawyers protested and refused to give their statements.

Hence, on the same day, the MACC investigation officer issued a notice under section 30(1)(a) of the act to each of the lawyers ordering both of them to be present at the MACC office on a date in March 2012 to be examined orally for the purposes of assisting the MACC in the investigation of an offence of corruption under section 16(b) of the act.

Under section 30(6) of the act, it is mandatory to comply with the said notice, notwithstanding any written law or rule of law to the contrary and anyone who contravenes the notice to be present and to be orally examined commits an offence, punishable with a fine not exceeding RM10,000 or to imprisonment not exceeding two years or to both.

Three days after being served with the notice, the lawyers informed the MACC in writing that they would not be present at the MACC office as directed. The lawyers subsequently filed an application for leave to apply for judicial review for the following reliefs: (a) for an order of certiorari to quash the notice issued under section 30(1)(a) of the act; (b) for a declaration that the said notice is unlawful, ultra vires and/or an abuse of powers under the act; and (c) for a declaration that the MACC had no power to record the statement of solicitors who represented their client during the recording of their client’s statement.

Leave was granted by the High Court. After hearing the substantive motion, the High Court granted the application for judicial review and quashed the said notice on the ground that it was issued as an act of intimidation against the lawyers acting as counsel for their client and an abuse of powers under the Act and therefore void and unlawful.

The MACC appealed to the Court of Appeal which dismissed the appeal. The appellate court agreed with the High Court that the issuance of the notice was clearly an act of intimidation and an abuse of powers under the Act. The notice was not issued in good faith.

The Court of Appeal held the view that the discretionary power to issue the notice under section 30(1)(a) of the Act was not an unfettered discretion but subject to a stringent requirement that it must be exercised for a proper purpose and not unreasonably, having regard to all relevant considerations and disregard all improper considerations (Pengarah Tanah dan Galian, Wilayah Persekutuan v Sri Lempah Enterprise Sdn Bhd [1979] 1 MLJ 135)

Sometime in April 2015, leave was granted to appeal to the Federal Court on the question of law whether a criminal investigative process such as a notice of investigation under section 30(1)(a) of the Act is amenable to judicial review.

Federal Court judge Abu Samah Nordin, who delivered the judgment of the Federal Court, said: “The weight of authorities tends to support the view that the actions or decisions of a public authority in exercise of its legitimate powers at the investigative stage are not amenable to judicial review.”

For example, in City Growth Sdn Bhd & Anor v The Government of Malaysia [2006] 1 MLJ 581, the applicants (City Growth Sdn Bhd & Anor) applied for leave for an order of certiorari to quash the order issued by the deputy public prosecutor (DPP) under section 50(1) of Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (AMLA). The High Court dismissed the leave application, holding that the order of the DPP was not amenable to judicial review. If all decisions and actions of public authority of this nature were amenable to review, the government machinery might not be able to function smoothly as the investigation process of all enforcement agencies would be open to constant judicial review.

It was also held by the Federal Court in Empayar Canggih Sdn Bhd v Ketua Pengarah Bahagian Penguatkuasa Kementerian Perdagangan Dalam Negeri dan Hal Ehwal Pengguna Malaysia & Anor [2014] MLJU 1869] that an exercise of power in the course of a criminal investigation was not open to judicial review. To hold otherwise would be exposing the criminal investigative process of all law enforcement agencies in the country to constant judicial review which surely could not have been the intention of Parliament.

Accordingly, the actions or decisions of a public authority in exercise of its powers in the course of criminal investigation or enquiry is not open to judicial review.

On the lawyers’ assertion that their client had a constitutional right under article 5 of the Federal Constitution to be represented by counsel, the learned judge explained the provisions of the article as follows:

“Article 5(2) of the Constitution speaks of the right of a person who is being unlawfully detained to make a complaint to the High Court. This is a provision where a person claiming to be unlawfully detained, ordinarily applies for a writ of habeas corpus.

“Article 5(3) speaks of a right of an arrested person to consult and to be defended by a legal practitioner of his choice. The [complainant] is a witness and not a suspect or an arrested person or a person ‘unlawfully detained’. So, Article 5(2) or 5(3) of the Constitution does not confer any constitutional right on the complainant to be represented by counsel during the recording of his statement as a witness.

“Learned counsel’s contention that their client has a constitutional right under Article 5 to be represented by counsel is just a bare assertion.” (Suruhanjaya Pencegahan Rasuah Malaysia & Ors v Latheefa Beebi Koya & Anor [2017] 5 MLJ 349)

The law distinguishes between a suspect, an arrested person and a witness in a criminal investigation. – January 5, 2024.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.