Federal Court: MACC’s notice to quiz lawyers of clients cannot be challenged

The Federal Court ruled that the Malaysian Anti-Corruption Commission’s notice to take statements from lawyers whose clients were under investigation could not be challenged in court through judicial review. — Picture by Miera Zulyana
The Federal Court ruled that the Malaysian Anti-Corruption Commission’s notice to take statements from lawyers whose clients were under investigation could not be challenged in court through judicial review. — Picture by Miera Zulyana

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KUALA LUMPUR, Aug 9 — The Federal Court today decided that the Malaysian Anti-Corruption Commission’s (MACC) notice to take statements from lawyers — whose clients are under the anti-graft body’s probe — cannot be challenged in court through judicial review.

Lawyer Shahid Adli Kamarudin said the Federal Court unanimously decided that the MACC’s 2012 notice to his two clients — lawyers Latheefa Koya and Murnie Hidayah Anuar — is “valid and cannot be judicially reviewed”.

He said the Federal Court allowed the MACC’s appeal against his two clients, adding that the judges felt that Parliament did not intend to have the courts review the criminal investigative process — which also includes the notice.

“It is not the intention of Parliament to expose the criminal investigation process to judicial review,” he told Malay Mail Online when contacted.

Shahid confirmed that today’s decision means that the MACC can record statements from lawyers who represent clients who are being investigated.

He said the unanimous decision and the brief grounds were read out by Federal Court judge Tan Sri Abu Samah Nordin.

The five-man panel was chaired by Chief Judge of Malaya Tan Sri Ahmad Maarop and also consisted of Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum, Tan Sri Hasan Lah, Datuk Balia Yusof Wahi. M. Puravalen was Latheefa and Murnie Hidayah’s lead counsel.

In allowing the appeal by the MACC and the government, the Federal Court did not make any order on legal costs to be paid by Latheefa and Murnie Hidayah, Shahid said.

“The senior federal counsel asked for RM30,000 costs but we argued it is a public interest case and they didn’t ask for costs in the High Court and Court of Appeal, so no order as to costs,” he added.

The Federal Court’s decision today is on the single legal question posed by MACC of “whether a criminal investigative process such as a Notice of Investigation under section 30(1)(a) of the Malaysian Anti-Corruption Commission Act 2009 is amenable to judicial review”.

Under Section 30(1)(a), an MACC officer who is investigating an offence under the MACC Act may order any person to show up for questioning on any matter which the officer thinks may aid the investigation.

The MACC had reportedly issued the March 19, 2012 notice to Latheefa and Murnie Hidayah on the same day they accompanied their client — ex-National Feedlot Corporation (NFC) consultant Datuk Shamsubahrin Ismail — to record his statement at its office.

The two lawyers had then refused to comply with an order to have their statements recorded, resulting in both being issued a notice to show up at the MACC office on March 23, 2012 for questioning and were warned that failure to comply may result in a fine or imprisonment or both.

The two later filed a legal challenge against the notice which they said had breached the Federal Constitution’s Article 5(2) and was void.

They won on January 30, 2013 in the High Court with the MACC notice quashed for being invalid and an abuse of power, with the court also then ruling that MACC officers did not have the authority to record statements from lawyers who accompany their clients.

The Court of Appeal had on November 17, 2014 upheld the High Court ruling in favour of Latheefa and Murnie Hidayah, concluding that the notices issued against the two lawyers were “clearly an act of intimidation and abuse of powers” and that there was no legal basis for the notices.

The appellate court had also then said that the MACC notices against the duo were not issued in good faith, noting that they were present during the recording of Shamsubahrin’s statement as his legal representatives and that there was nothing to indicate that the duo were potential witnesses or suspects.

It is unclear what the full impact of today’s ruling would be, as Section 30(3) states that a person given the Section 30(1)(a) notice of investigation has to show up for questioning and disclose all information within his knowledge and cannot “refuse to answer any question on the ground that it tends to incriminate him or his spouse”. It does not mention lawyers and their clients.

Among other things, Section 30(9) says that the record of the questioning or any documents produced during such a questioning shall be admissible as evidence in any court proceedings against those who have been questioned or any other persons for an offence under the MACC Act or for property forfeiture.

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