DECEMBER 1 — The Malaysian Anti-Corruption Commission Act 2009 is an Act of Parliament to provide for the establishment of the Malaysian Anti-Corruption Commission (MACC), to make further and better provisions for the prevention of corruption and for matters necessary thereto and connected therewith.

The Act came into force on January 1, 2009.

Armed with “better provisions for the prevention of corruption” officers of the MACC duly set out to carry out their functions as specified in Section 7 of the Act, the first of which is receive and consider any report of an offence under the Act and investigate such reports.

Before long, the powers of investigation of the officers were contested in the courts.

In the case of Datuk Seri Ahmad Said Hamdan, Ketua Suruhanjaya, Suruhanjaya Pencegah Rasuah Malaysia & Ors v Tan Boon Wah [2010], the brief facts as stated in the following paragraphs, appeared in the judgment of the Court of Appeal dated February 4, 2010.

Acting on information received, the MACC commenced investigation in connection with an offence concerning the use of false details in applications for State Constituency Funds which were submitted to district offices, for the purpose of carrying out activities in Kawasan ADUN Selangor.

In the course of the said investigation, on July 15, 2009, a team of MACC officers made a search at the respondent’s house. 

One of the companies being investigated was a company called Merit Link Enterprise. 

According to the MACC, since Merit Link Enterprise was registered in the name of the respondent’s wife, the MACC officers requested her to come to the MACC office for further investigation.

The respondent, who was together with his wife at the material time, offered to go to the MACC’s office in place of his wife. 

The respondent then followed the MACC officers back to the MACC office at Shah Alam. The respondent said that on the direction of the MACC officers, he was taken from his house and required to attend the MACC office at 8.45pm on July 15, 2009.

There was a dispute as to how the respondent came to be at the MACC office. However, it appeared that the respondent was examined from 9.45pm on July 15, 2009 until 2.50am on July 16, 2009. 

The respondent was allowed to leave the MACC office at 2.50am but chose to remain there until the morning of July 16, 2009, to wait for his wife who allegedly would be bringing the relevant documents with her.

On July 22, 2009, the respondent, being disgruntled with what he had undergone between 8.45pm on July 15, 2009 and 2.53am onJuly 16, 2009 commenced an action by way of an originating summons asking for, among others:

(a)      a declaration that pursuant to Section 30(1)(a) of the Act an investigating officer can only record a statement of a witness during office hours, namely 8.30am to 5.30pm each day and not at any other time;

(b)      a declaration that the MACC had acted in contravention of the provisions of Section 30(3)(a) of the Act;

On November 19, 2009, the High Court allowed the respondent’s application and made the following declaration:

(a)      that pursuant to Section 30(1)(a) of the Act an investigating officer can only record a statement of a witness during office hours, namely 8.30am to 5.30pm each day and not at any other time;

(b)      that the MACC had acted in contravention of the provisions of Section 30(3)(a) of the Act;

Dissatisfied with the High Court decision, the MACC appealed to the Court of Appeal (COA). The main issue before the COA was whether under Section 30(3) of the Act, a person to whom an order had been given under Section 30(1)(a) of the Act could be examined only during office hours.

The appeal presented an occasion for the COA to rule on the meaning of the word “person” in Section 30(1)(a) of the Act.

In allowing the MACC’s appeal, the COA ruled, among others, as follows:

(1)    It is important for the courts to give effect to the plain words in legislation. In determining the meaning of any word or phrase in a statute, the first question to ask is what the natural or ordinary meaning of that word or phrase in its context in the statute is. It is only when that meaning leads to some result that cannot reasonably be supposed to have been the intention of the legislature that it is proper to look for some other possible meaning of the word or phrase.

(2)    In construing a provision in an Act, pursuant to Section 17A of the Interpretation Acts 1948 and 1967, what must prevail is a construction that promotes the purpose of the Act.

(3)    The word “person” in Section 30(1)(a) includes both witness and suspect. Thus, a person who may be ordered to attend pursuant to Section 30(1)(a) may be a witness and/or a suspect.

One may add that a witness can be a lawyer.

It means that Section 30(1)(a) of the Act empowers a MACC officer to order a lawyer to attend before him for the purpose of being examined. When an order is given under that section, it creates a legal obligation on the lawyer to whom the order has been given, to attend to be examined, according to the terms of the order.

The terms of the order include the time during which that person must attend. The time is to be fixed by the MACC officer. There is no restriction that the officer fix the time for examination only during office hours.

At this juncture, it is important to recall the purpose of the MACC Act – that is, to make further and better provisions for the prevention of corruption. The detection and investigation of offences under the MACC Act and the bringing of persons accused of any such offences to justice is also clearly an inseparable, intended object of the MACC.

The power prescribed under Section 30(1)(a) of the Act – the power to examine and record statements from persons who may assist in investigations – is a power that must be exercised promptly.

An investigation officer of the MACC is obliged to commence investigations as soon as he receives information about an offence under the Act. 

Promptness in the investigation of offences under the Act, which are serious offences, is of utmost importance. (See the judgment of Judge of Court of Appeal Ahmad Maarop in the case)

Clearly, persons who may be called by the MACC for the purpose of being examined orally to assist in the investigation into an offence under the Act include lawyers.

And why not?

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.