DECEMBER 3 — Malaysian Anti-Corruption Commission (MACC) Chief Commissioner Tan Sri Azam Baki’s “nothing to hide” remarks reminds me of the case against him and his officers in Muhamad Kharul Rizal bin Jasi & Ors v Tan Sri Dato’ Sri Haji Azam bin Baki (Ketua Pesuruhjaya Suruhanjaya Pencegahan Rasuah Malaysia).

Sometime in December 2023, the applicants in that case filed an application for leave to commence a judicial review proceeding under Order 53 of the Rules of Court 2012 (ROC) seeking several orders of certiorari and mandamus, as well as a number of declarations.

Among the orders of certiorari sought were an order to quash the decision and/or action of the MACC under Sections 30 (examination of persons), 31 (search and seizure) and 33 (seizure of movable property) of the MACC Act 2009 (the Act) against the applicants and an order to quash the decision and/or action of the MACC who had wrongfully arrested and detained the first applicant.

Among the orders of mandamus sought were an order against the MACC to return the items which had been wrongfully seized from the applicants and an order to ensure that all MACC officers adhere to the purpose of the law and all the procedures and MACC’s investigation process in a fair and just manner.

The declarations sought included declarations that:

1. Sections 30 and 31 of the Act do not give the right or power to MACC to waive the privilege of the third and fourth applicants, who is a lawyer and a legal firm respectively, under Malaysian law which protects all the communication and information between lawyer and client referred to legal professional privilege, except where such privilege is waived by the client;
2. Sections 126 (professional communications), 127 (application to interpreters), 128 (privilege not waived by volunteering evidence) and 129 (confidential communications with legal advisers) of the Evidence Act 1950 (EA) allow a lawyer to refuse any request or claim from MACC officers to give access to, or disclosure of any communication by the client protected by legal professional privilege, except where such privilege is waived by the client;
3. Sections 126, 127, 128 and 129 of the EA cannot be violated even though an order of a High Court Judge pursuant to Section 46(1) of the Act has been obtained;
4. The MACC has violated the rights of the third and fourth applicants as lawyers by issuing the order pursuant to Sections 30, 31 and 33 of the Act; and
5. A lawyer can only be required to disclose information with full and strict compliance of law through an order from the High Court and failure to produce such order pursuant to Section 46 of the Act 496 renders the whole proceedings carried out against the third and fourth applicants unlawful.

That’s quite a mouthful of orders.

On January 22 this year, the learned judge dismissed the application. The learned judge’s grounds of decision can be read here.

The gist of the decision is this: the Malaysian courts have consistently declined to entertain any challenge to acts done and decisions made in the course of a criminal investigation. Such acts and decisions are by their nature non-reviewable.

To hold otherwise would open up the investigation process of all law enforcement agencies to constant judicial review, and that cannot have been the intention of Parliament.

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