Thursday, December 17, 2009

Court of Appeal allows MACC to quiz after office hours

By Debra Chong  |  PUTRAJAYA, Dec 17   09 

— The Court of Appeal today ruled that the Malaysian Anti-Corruption Commission (MACC) can interrogate witnesses beyond office hours.

The decision of the three-man Bench, comprising Justices Hasan Lah, Ahmad Maarop and Syed Ahmad Helmy Syed Ahmad, was unanimous.

Once again, the High Court has been overruled by the Court of Appeal, in a case brought by the opposition against the establishment.

The MACC had lost the case last month when the High Court ruled that Kajang town councillor Tan Boon Wah had been illegally detained for questioning overnight at its head office in Plaza Masalam, Shah Alam on July 15.

High Court judge Mohd Ariff Mohd Yusof had ruled on Nov 21 that the phrase “day to day”, which was at the core of the dispute between Tan and the MACC, cannot mean “round the clock” investigation which includes recording statements from the witness.

Mohd Ariff then applied the dictionary meaning to the phrase and said it should be confined to office hours, which are between 8.30am and 5.300pm.

“We are of the view that Section 30(3)(a) of the MACC Act comprises two points as submitted by counsel,” Hasan observed when he read out the judgment, which disagreed with the High Court ruling.

“There is nothing in the provision to say that ‘day to day’ is restricted to normal working hours,” he noted.

But the three-men bench failed to define what the term should mean, a point which lawyer Karpal Singh, acting for Tan, pounced on.

“The Court of Appeal did not say what ‘day to day’ means. We are still in doubt,” Karpal told reporters later.

“Are they saying it’s round the clock? If it’s round the clock, it will lead to serious complications,” he added, and pointed that the administration of justice will be compromised.

“Because the nature of evidence taken from someone woken up in the middle of the night is of very low quality.

“Evidence must be given when witnesses are alert, otherwise, MACC officers can drag you out of bed,” the DAP leader quipped.

The 69-year-old stressed that “even suspects in a crime are given more protection than witnesses” under lock-up rules, which require suspects to stay in their cells between 6.30pm and 6.30am.

“In the meantime, I would advise MACC officers to be careful in their investigations by not getting witnesses to testify in the middle of the night,” he warned.

Tan was taken in about 9pm on July 15, the same day as political aide Teoh Beng Hock, who was later found dead on a 5th-floor landing outside the MACC office and whose death is currently the subject of an on-going inquest.

Tan was questioned until about 2am and went home the next day at lunch time.

Earlier, lawyer from the Attorney General’s Chambers, Amarjeet Singh, argued that the anti-graft body’s power to combat corruption had been boosted through the MACC Act, passed by Parliament last year and which take effect this year.

The new laws also do not restrict the MACC to carrying out its work within a specific time frame, Amarjeet said.

“Investigations take paramount consideration,” he stressed.

The federal counsel also said it was unreasonable to expect the MACC to stop investigations after dark because crime happened all the time.

“If an offence occurs at night and someone comes to report, do we say ‘Hold on. Come back at 8.30am the next day?’” Amarjeet quizzed.

Even if the term “day to day” did not mean “round the clock” as the High Court had claimed, it should not apply to the first appointment set by the MACC, Amarjeet claimed.

Tan had been subpoenaed by the MACC to show himself at the head office by a certain time, Amarjeet said. If he ignored that subpoena, Tan could have been jailed.

Amarjeet said the High Court had mistakenly applied the term to the entire investigation starting from the first appointment instead of subsequent meetings and asked the appeals court to reject the High Court’s judgment.

Karpal repeated his previous analogy that lock-up rules protect suspects in an investigation and commonsense should imply that witnesses receive similar protection under the law.

The senior lawyer, who is also Bukit Gelugor MP, also argued that the commision had not acted in “good faith”, a crucial element to promote its own purpose, which is to better fight corruption.

He mocked today’s decision for showing that “witnesses have no right to rest.”
Karpal told reporters he will appeal against today’s decision, which he stressed, was of public interest.

He added he will file for leave to stay today’s decision at the Federal Court on Monday because tomorrow is a public holiday.

He hopes the top court will give an early date to settle the debate over the meaning of the phrase “day to day”.