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‘MACC Notice To Two Lawyers Cannot Be Challenged In Court’

PUTRAJAYA – The Federal Court yesterday ruled that a notice issued by the Malaysian Anti-Corruption Commission (MACC) to two lawyers to give their statements to assist in the investigation into the National Feedlot Corporation (NFC) case cannot be challenged in court.

A Federal Court five-man bench led by Chief Judge of Malaya, Tan Sri Ahmad Maarop allowed the appeal by the MACC, the government and MACC Assistant Superintendent Suziana Ali to set aside the high court and appellate court’s decisions to cancel the notice.

The notice was issued by the MACC to lawyers Latheefa Koya and Murnie Hidayah Anuar, requesting them to be present at the MACC headquarters in Putrajaya on March 23, 2012, to assist in the investigation into a case involving the NFC.

Justice Tan Sri Abu Samah Nordin, one of the judges presiding on the bench, in delivering the court’s judgment said actions or decisions of a public authority in exercise of its powers in the course of a criminal investigation or enquiry was not open to judicial review.

“The notice was issued in order to assist the appellants (MACC) in the investigation of a corruption offence under Section 16 (b) of the Act. To hold otherwise, would expose the criminal investigative processes of all law enforcement agencies to constant judicial review,” he said.

Justice Abu Samah said Article 5 (2) or Article 5 (3) of the Federal Constitution did not confer any constitutional right on a complainant to be represented by counsel during the recording of his statement as a witness.

In the 28-page written judgement, Justice Abu Samah said the allegation that the notice was issued as an act of intimidation or was issued mala fide on contention that the complainant had a constitutional right to be represented by counsel during the recording of his statement as a witness, could not be the basis for quashing the notice which was issued under Section 30 (1) (a) of the Malaysian Anti-Corruption Commission Act 2009.

He said there was no provision in the Act giving solicitors the right to be present during the recording of their client’s statement in the course of an investigation.

“The respondents (Latheefa and Murnie) had in fact been allowed to be present although the appellants (MACC) held the view that the respondents’ client had no constitutional right to be represented at that stage.” Justice Abu Samah said there was no element of surprise or ambush as the lawyers were informed in advance that their statements might be recorded if they insisted on being present.

“They opted to be present, holding steadfastly to their contention that their client had a constitutional right to be represented,” he said.

Richard Malanjum and Federal Court judges, Tan Sri Hasan Lah and Datuk Balia Yusof Wahi also presided in the bench.

The lawyers filed a judicial review claiming that they were being compelled, through the notice, to be present at the MACC headquarters and failure to abide by the notice is an offence under Section 48(c) of the MACC Act 2009 and punishable under Section 69 of the same Act, which carries a fine not exceeding RM10,000 or a jail term of up to two years, or both, upon conviction.

Latheefa and Murnie Hidayah claimed they were served the notice on the same day, March 19, 2012, after accompanying their client, former NFC consultant Datuk Shamsubahrin Ismail, to the MACC office to give his statement.

On Jan 30, 2013, the High Court quashed the notice dated March 19, 2012, after allowing the judicial review application by the lawyers, who named the MACC, the government and Suziana Ali as respondents.

Senior federal counsel Suzana Atan appeared for the appellants while counsel M Puravelan represented Latheefa and Murnie. — Bernama