Friday, November 20, 2009

MACC can’t quiz witnesses beyond office hours, High Court rules

Tan Boon Wah (right) was detained overnight at the same time as Teoh Beng Hock. — file pic

By Debra Chong

KUALA LUMPUR, Nov 19 — The High Court here today delivered a stunning rebuff to the Malaysian Anti-Corruption Commission’s (MACC) investigative procedures by ruling that it has no right to question witnesses in an investigation beyond normal office hours, namely from 8.30am to 5.30pm.

It also found the MACC to have acted illegally when it detained Kajang town councillor Tan Boon Wah overnight at its Selangor head office in Plaza Masalam, Shah Alam.

Judicial Commissioner (JC) Mohamad Ariff Md Yusof stressed that the meaning of the phrase “day to day” as laid down in Section 30(3)(a) of the MACC Act – which is at the core of the dispute between Tan and the MACC – “cannot mean round the clock” investigation, which includes recording statements from the witness.

Mohamad Ariff explained that to do so would “offend the legislative purpose” and limit the fundamental liberties of a person, which are clearly laid down in the Federal Constitution, under Article 5, and which the Federal Court had recently upheld must be interpreted in the “widest sense” possible.

He remarked that the MACC may have realised this when they ordered Tan to return to help in further investigations at 10am on July 20, which is well within normal working hours.

The High Court ordered the MACC to pay damages to Tan for “false imprisonment” between 9.45pm on July 15 and 2.53am on July 16, but left it up to the court registrar’s office to determine the amount, which will include interest.

Tan was taken in for questioning as a witness by Selangor graft busters investigating claims of an abuse of state funds involving DAP state executive councillor, Ean Yong Hian Wah, about 9pm on July 15, the same day as political aide Teoh Beng Hock.

Teoh, who was Ean Yong’s secretary, was also interrogated overnight and found dead the next afternoon on a fifth-floor landing outside the MACC office in Plaza Masalam, Shah Alam. His mysterious death is currently the subject of an on-going inquest.

Tan was interrogated until nearly 3am the next day and then told to go home, but stayed on to have his statement recorded later at about 11am. He finally left the MACC office around lunch time.

The suit against the national anti-graft body was filed on July 22.

Tan’s lawyer, Karpal Singh, told reporters later that it was a landmark case which held great consequences on how interrogations of both witnesses and suspects in an investigation would be carried out in future.

“This affects across the board every investigation in the country; every police investigation and even the Criminal Procedure Code,” the veteran said and added that it was no longer limited to the MACC’s way of handling things.

“For the first time, we get a definitive ruling to the phrase ‘day to day’,” Karpal added, referring to the JC’s stress that the law was silent on how the phrase should be read and resorted to consulting the dictionary meaning of it.

Asked to comment on the impact the High Court’s decision in relation to the dead political secretary, Karpal said: “In the case of Teoh Beng Hock, death was involved. The MACC has to be sued in a wider range and not limited to just the questioning.”

Karpal, who is also the MP for Bukit Gelugor, noted that the authorities had always thought they could question anyone at any time.

He marked that today’s ruling paved the way for others who had been similarly affected in the past to sue the authorities for holding them beyond regular hours.

But he said that those looking to claim damages must do so quickly because the Public Authorities Protection Act limits legal action being taken against such public institutions to within the last three years.

The Kajang councillor who was in court when the decision was read out looked highly relieved. He said he had filed the suit hoping to stop the MACC’s practice of questioning people at odd hours, especially after what had happened to Teoh.

“It’s good for all Malaysians,” Tan said.

It is unknown at this point if the MACC will appeal the High Court’s decision.

While lawyers from the Attorney-General’s Chambers representing the commission did not indicate whether they accepted the ruling or not, Karpal thinks they are likely to appeal because of the implications on other public authorities.

He added that they have one month to file their appeal.

In an immediate reaction, DAP Parliamentary Leader Lim Kit Siang lamented that political aide Teoh Beng Hock would still be alive if the MACC had followed the law.

“Teoh Beng Hock would not have died if MACC had followed the law,” the Ipoh Timur MP said in a statement.

He said the landmark decision today was an added reason for MACC Chief Commissioner Datuk Seri Ahmad Said Hamdan to resign, following Malaysia’s worst Corruption Perception Index (CPI) ranking and score in 15 years in the Transparency International CPI 2009.

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