PUTRAJAYA: The Malaysian Anti-Corruption Commission (MACC) is looking at bank practices and the operations of three foreign anticorruption agencies to assist the Attorney-General's (AG) Chambers in appealing its case for after office-hours questioning of witnesses.

While the AG's Chambers, which is representing the MACC to appeal against a Nov 19 High Court ruling, is looking at "diverse set of arguments", it is learnt the Banking and Financial Institutions Act 1989 (Bafia), on which the Anti-Corruption Act 1997 was modelled, would be used in their appeal.

The Malay Mail also learnt that the appeal will also centre, among others, on confirmation by three established foreign anti-corruption agencies that they can record statements from witnesses after 5pm.

On Nov 19, the Kuala Lumpur High Court had ruled that the commission could not conduct questioning of witnesses after office hours, specifically after 5.30pm. The ruling was made following the death of 30-year-old Teoh Beng Hock, a political aide to Selangor Exco member, Ean Hong Hian Wah. Teoh was found dead outside Plaza Masalam, Shah Alam that houses the Selangor MACC office on July 16.

While the MACC has agreed to abide by the court's ruling, a debate has emerged on whether this would adversely affect investigations. It has also raised questions on the possibility of the government being open to legal action.

A source said a salient point is that Bafia has a provision that allows around-the-clock questioning of witnesses and suspects in investigations related to banking offences.

"Since the MACC Act was derived from the Anti-Corruption Act, then the Bafia provisions for investigation procedures should also apply," a source with the commission told The Malay Mail.

The source said another point of reference would be confirmation by three foreign anti-corruption agencies and enforcement authorities that they are allowed to question witnesses and suspects past office hours.

The agencies are the UK’s Metropolitan Police Service in New Scotland Yard, the Hong Kong Independent Commission Against Corruption (ICAC) and Interpol Group of Experts on Corruption. "These agencies have confirmed that they can record statements from witnesses after 5pm. Their legislation does not contain  specific provisions that prohibit them from questioning suspects and witnesses after office hours. The giving and recording of statements is based on mutual agreement."

In the case of New Scotland Yard, they confirmed that there were no restrictions on calling witnesses up and recording statements on weekends and public holidays.

“This goes to show that the MACC’s conduct of investigations is on par with international standards,” said the source. MACC investigations director Datuk Mohd Shukri Abdul declined comment on the matter.

The Malay Mail’s efforts to contact the commission’s deputy chief commissioner, Datuk Abu Kassim Mohamed, also proved futile.

It was reported yesterday that the Nov 19 ruling will be discussed in the Cabinet soon, with Deputy Prime Minister Tan Sri Muhyiddin Yassin saying there were views for and against the court ruling.

He had also said that the matter needed to be discussed at length when Prime Minister Datuk Seri Najib Razak returns from abroad.

Worry over court ruling

KUALA LUMPUR: The Nov 19 High Court ruling that bars MACC from questioning witnesses and suspects after 5.30pm has caused some legal minds to worry that it would open the floodgates for legal action be taken against the anti-graft body by those who had been questioned after office hours.

While lawyers The Malay Mail spoke with agreed that it was within one's rights to resort to legal action, some of them were worried that this would  have a snowball effect that could jeopardise anti-graft investigations.

Lawyer Muhammad Azuan Abdul Aziz said the ruling may open the floodgates for many questioned beyond 5.30pm to challenge the MACC in court.

"The courts cannot possibly award damages to all claimants as their cases will be presided on an individual basis," he said. "If a client comes up to me and says he wants to take up a case in court  against MACC, I will advise that while he can do so, he may not be able to win it and his efforts will be futile should that happen."

Lawyer Datuk Baljit Singh said the ruling may create a snowball effect. "However, I believe it will not pose a problem to the government.

"In practice, Malaysia is not a litigatious society as in the West. A lot of people whom may have felt disgruntled with MACC's actions in the past are more likely to take a stand to let bygones be bygones. So while there may be a few who will still go ahead and pursue cases against MACC, this will still not be troubling to them," he said.

Counsel Wan Azmir Wan Majid said while it was an individual's right to take legal action, "economically, it may not be worth it".

“Of course, if one feels that his or her statement was taken under duress, or for long durations that to the extent that it breached his freedom of movement, then the person can challenge the pertinence of the statement within three years of the incident, as mentioned by counsel Karpal Singh before," he said.

“However, if the person is unable to quantify his loss and cannot show the consequential damages he suffered during those hours he was held for questioning after office hour, the time, effort and cost that he will spend to fight his case could pose a bigger loss than a gain."

Counsel Yusmadi Yusoff, however, said the losses incurred by a person who claims to have been wrongfully interrogated and detained would be assessed by the court.

“To claim such losses, the person needs to file a civil suit against the agency concerned. As long as the person can prove that his case is legitimate, and the suit filed within the stipulated three-year time frame, then the person can dispute his statement being used as evidence in court,” he said.

Lawyer Keppy Wong was all for having members of the public contest their statements in pending anti-graft court cases, if they felt that their testimony was recorded involuntarily.

“I don’t think that there will be chaos if members of the public exercise their rights.

“I believe the Kuala Lumpur High Court’s ruling is laudable as it sends a clear message to enforcement officers to be disciplined and not violate human rights when carrying out their duties,” said Wong, who is also an Ampang Jaya municipal councillor.

Following the death of Selangor exco political aide Teoh Beng Hock on July 16, the Kuala Lumpur High Court had ruled on Nov 19 that it was illegal for MACC to conduct questioning of witnesses and suspects any other time than the general office hours of 8.30am to 5.30pm.

That same day, lawyer and DAP chairman Karpal Singh had said those who had been interrogated, including suspects, beyond office hours in the last three years could file cases against the government and the police for
damages as stipulated under the Public Authorities Protection Act 1948.

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