Wednesday, February 10, 2010

November 19, 2009 17:08 PM

Court Rules MACC Cannot Detain, Question Witnesses After Office Hours

KUALA LUMPUR, Nov 19 (Bernama) -- The Malaysian Anti-Corruption Commission (MACC) can no longer question witnesses overnight after the High Court here on Thursday ruled that this must be done during office hours from 8.30am to 5pm.

Justice Mohd Ariff Md Yusof in his decision held that section 30(3)(a) of the MACC Act 2009 does not give power to the MACC to conduct investigations on a witness "round-the-clock".

"The phrase 'day-to-day' in the section cannot mean 24 hours but normal working hours," held Justice Mohd Ariff in the landmark decision, delivered at 2.50pm.

"Therefore, I agree that the applicant in this case had been unlawfully detained by the MACC," he said in allowing a judicial review filed by Kajang municipal councillor Tan Boon Wah.

Tan, 39, is suing MACC chief commissioner Datuk Seri Ahmad Said Hamdan, MACC assistant superintendent Mohammad Hassan Zulkifli and the MACC, claiming that his detention and questioning for 16 hours overnight by the MACC was unlawful, which resulted in him suffering losses and damage.

In his application for the judicial review filed on July 22, Tan demanded a court declaration that the defendants, who were carrying out investigations under section 30(3)(a) of the MACC Act 2009, could only record his statements as a witness during office hours only, that is from 8.30 am until 5.30 pm.

Tan is one of several people who were called up by the MACC to give statements concerning investigations on alleged misappropriation of Selangor government allocations.

The court also granted Tan damages for the unlawful detention by the MACC from 9.45pm on July 15, 2009 to 2.53am the next day and ordered the defendants to pay him costs.

In the court's decision today, Justice Mohd Ariff said the phrase "day-to-day" in the section raised ambiguity as it is not defined properly in the act itself.

However, he said, a proper interpretation must be given to avoid absurd results as it affected a person's fundamental liberties as guaranteed under Article 5 of the Federal Constitution.

"The phrase "day-to-day" cannot mean "around the clock". Section 30 cannot be interpreted that way, to do so will offend the intention of the legislature and will curtail the ambit of personal liberty," said the judge.

He stressed that any statutory provision affecting fundamental liberties must be read properly and be given the widest room.

Justice Mohamad Ariff said the written judgment would be delivered next week.

Outside the court, Tan, when approached by reporters, said he was relieved and happy with the court's ruling.

Meanwhile, Tan's leading counsel Karpal Singh said the decision was not only binding on the MACC but also affected every police investigation.

He also urged people who had been interrogated by the MACC after office hours to sue the commission.

When asked whether the defendants would appeal the decision, senior federal counsel Noorin Badaruddin said she would get further instructions on the next step.

-- BERNAMA

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