This is the immediate reaction not only of family members of Beng Hock, DAP and Pakatan Rakyat, but all Malaysians following the landmark decision by the Kuala Lumpur High Court today which ruled that the MACC is not entitled to interrogate witnesses late at night beyond normal office hours, from 8.30am to 5.30pm.
Justice Mohd Ariff Md Yusof ruled that it was illegal for the MACC to question its witnesses at night as such questioning must be done during the daytime.
“The term day to day as stipulated in the MACC Act cannot mean round the clock.”
This landmark decision is the result of the suit filed by Kajang Councillor Tan Boon Hwa who was falsely imprisoned together with Teoh Beng Hock on July 15 and 16 at the MACC headquarters in Shah Alam, with the case argued by DAP National Chairman and MP for Bukit Glugor Karpal Singh.
This is an added reason why the MACC Chief Commissioner Datuk Seri Ahmad Said Hamdan should resign, in allowing MACC to become a Frankenstein as to cause Teoh Beng Hock’s unnecessary death in a campaign not to declare war against corruption but against Pakatan Rakyat to serve Umno/BN political agenda.
It was only two days ago I had called for Ahmad Said’s resignation as MACC chief following Malaysia’s worst Corruption Perception Index (CPI) ranking and score for the past 15 years in the Transparency International CPI 2009, making Malaysia the worst performer in Asia in anti-corruption in the past 15 years.
Karpal has informed me that the judgment covers not only MACC but all law enforcement agencies, including the police, that all witnesses should be treated fairly and lawfully.
For a start, the MACC, police and all law enforcement agencies must immediately revise their Standing Operating Procedures so as not to run afoul of the Mohd Ariff judgment in the Tan Boon Hwa case.
MACC must cease immediately all unlawful activities in questioning witnesses beyond normal office hours.
The Malaysian Insider reports:
MACC can’t quiz witnesses beyond office hours, High Court rules
By Debra ChongKUALA 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.
Malaysiakini reports:
High Court: MACC’s night interrogation illegal
Hafiz Yatim
Nov 19, 09In a landmark decision today, the Kuala Lumpur High Court ruled the Malaysian Anti-Corruption Commission is not entitled to interrogate witnesses late at night.
Justice Mohd Ariff Md Yusof ruled that it was illegal for the MACC to question its witnesses at night as such questioning must be done in the daytime, during office hours.
“The term day to day as stipulated under Section 30 (3) (a) of the MACC Act cannot mean round the clock. To do so, will offend the intention of the legislature and to curtail the ambit of personal liberty.
“The court allows the application for the declaration,” he said.
He also ordered costs to be paid to the plaintiff, Kajang councillor Tan Boon Hwa.
Despite the differences in opinion on the time when Tan was interrogated, Karpal agreed to the one stipulated by the MACC officer in his affidavit which was between 9.45pm on July 15 and 2.53am on July 16.
Hence, Mohd Ariff directed the court’s senior assistant registrar to assess the damages for wrongful detention based on those stipulated time.
Tan filed a suit on July 22 claiming that the MACC had falsely imprisoned him when he was detained and questioned at odd hours.
He said that he was questioned late at night along with political aide Teoh Beng Hock on July 16.
MACC meanwhile had contended they had the right to interrogate witnesses at odd hours.
Senior federal counsel Noorin Badaruddin, who appeared on behalf of the MACC, said she has received instructions from the Attorney General to file an appeal.
Tan, commenting today’s judgment, said the decision was important to all Malaysians.
“What is important is that no one should be subjected to such interrogation late at night. This is a victory for all Malaysians,” said the Kajang municipal councillor.
Oxford dictionary meaning used
Mohd Ariff in his judgment had used a federal court case and also the Oxford English dictionary second edition, in arriving at the decision.
In the federal court decision, the judge noted that personal liberty as enshrined under Article 5 of the Federal Constitution should have been expanded.
He also noted that within the MACC Act, there was no definition of “day to day”.
Section 30 (3) (a) states: A person to whom an order has been given under paragraph (1) (a) shall attend in accordance with the terms of the order to be examined orally to assist investigations, and shall continue to attend from day to day where so directed (by the MACC) until the examination is completed.
As a result of this, Justice Mohd Ariff said the court was empowered to interpret the meaning.
“Looking at the definition under the Oxford Dictionary “day to day” means daily. It does not mean 24 hours a day but at anytime of the day. Hence, it should mean within normal working hours as stipulated between 8.30am and 5.30pm,” he said.
Justice Mohd Ariff, also noted that the MACC had summoned Tan to give his statement on July 20, at 10am. Hence, this was within the right definition of day to day. This means, he can be brought in or come another day (during office hours) to help assist in the investigations.
Karpal: Decision has serious ramifications
Karpal, who represented Tan, said today’s judgment was a landmark decision, as never before had the court interpreted the limits of conducting interrogations.
He said the MACC Act gave an avenue for the public to address the issue.
The senior lawyer also pointed out that even under the Lock-Up Rules, a person must be in his cell (jail) between 6.30am and 6.30pm and hence, interrogation could not conducted outside those time.
He said in previous Acts, there was no specific reference on ‘day to day’ in the conduct of interrogation for witnesses.
Asked whether the judgment would mean that Teoh’s family could file a similar suit for wrongful detention, Karpal said it would mean that and more.
“Under the Public Authorities Protection Act, civil liability on the government is limited to three years. Hence, witnesses for the past three years, who have been unlawfully detained and where interrogations were conducted after office hours could file for damages claim,” he said.
As a result of Tan and Teoh’s matter, the Selangor government has also issued a circular barring its officers from being interrogated by the MACC after office hours.
The attorney-general has, however, sought to set it aside on the basis that the circular is against the law, because it violates the legal rights accorded to the MACC officers in performing their duties.
The case is pending in Shah Alam High Court.
No comments:
Post a Comment