By Deborah Loh
deborahloh@thenutgraph.com
RUSHED through Parliament in haste, it was only a matter of time before weaknesses in the Malaysian Anti-Corruption Commission (MACC) Act would emerge.
Tragically, it took a death to re-open the debate on an institution formed only six months ago.
Back when the MACC Bill was being debated, there appeared to be little fuss about the lack of procedures for the arrest and interrogation of persons. The prevailing concern was over the MACC's independence. Objections were raised against the commission's deference to the Attorney-General because Section 58 of the Act states that charges can only be pressed with the public prosecutor's consent.
Teoh Beng Hock's death has thrown a spotlight on a lacuna in the MACC Act with regards to how and when detainees are to be questioned. Even laws governing the police are better, some lawyers are now saying. Indeed, the MACC Act contains little in the way of the Criminal Procedure Code (CPC) and the Police Lock-up Rules in terms of defining a detainee's or suspect's rights.
Clear abuse
Does this lack of specifics give MACC officers free reign to question a witness, or even a suspect, into the wee hours of the morning?
In such cases where an Act is silent on those rights, other laws on the subject should apply, says the Bar Council's criminal law committee head, Rajpal Singh.
"This is understood from all previous case laws. If all other laws are silent, you then refer to common law principles in England," he tells The Nut Graph in a phone interview.
The relevant laws would be Rule 20 of the Police Lock-up Rules 1953, and Section 28 of the CPC. The first stipulates that detainees should be kept behind bars from 6:30pm to 6:30am. In other words, no interrogation should be carried out during this time, and detainees are allowed to rest. In the CPC, a person arrested must be told of the grounds of arrest, be allowed to contact a relative, friend or family member, and be given access to a lawyer at the place of detention.
Baljit (Pic courtesy of Baljit Singh) Criminal lawyer Datuk Baljit Singh Sidhu says MACC has "clearly abused its power" in Teoh's case. "If these are the rules for suspects, what more for a witness? If MACC says he was a witness, why was he detained until 3:45am? That in itself is already fatal on MACC's part," Baljit, who is also Federal Territory Gerakan's legal adviser, tells The Nut Graph.
Hence, the suit filed by Kajang municipal councillor Tan Boon Wah against the MACC for illegal detention will be a good test case, notes Rajpal. Tan says he was held for questioning from 8:30pm to 1:35pm the following day. His suit is on the grounds that he should only be questioned during government working hours from 8:30am to 5pm, even though the MACC Act doesn't stipulate a time frame.
"How will the court decide on this lacuna? Will it consider the Police Lock-up Rules applicable? Tan's suit is crucial because what the court decides will apply to Teoh's case," Rajpal says.
Other weaknesses
While Teoh and Tan's cases involve interrogation procedures, other parts of the MACC Act are also now up for scrutiny. Lawyers feel that Section 53 on the admissibility of any statement by accused persons as evidence in a trial should also be amended.
The context for admissibility is wide under Section 53, unless the court feels that statements were made under duress. Whether or not it was meant as a confession; whether in writing or orally; whether made in the course of investigations or not; whether before or after the person is charged; whether it was said directly to, or in the hearing of a commission officer — the statement can be used by the prosecution against an accused. Statements by a witness may be used to cross-examine him or her.
Allowing statements in trial under such a broad context moves the MACC Act away from the spirit of the 2006 amendments to the CPC to stop the use of cautioned statements in criminal trials. Amendments or a repeal of Section 113 of the CPC were recommended by the Parliamentary Select Committee on criminal law, and by the Royal Commission to Enhance the Operation and Management of the Royal Malaysian Police before that.
There was recognition that cautioned statements and confessions could have been obtained under threat or by force. The tendency to rely on them to secure convictions was also causing the quality of investigative work to deteriorate.
(Pic by pmdash / sxc.hu)
In fact, Attorney-General Tan Sri Abdul Gani Patail had, in August 2005, directed all deputy public prosecutors to stop using cautioned statements and confessions in criminal trials. Section 113 was subsequently amended the following year. Now, statements made to a police officer during investigations can only be used in defence, but not as evidence by the prosecution.
"However," Rajpal points out, "this is not applicable to the MACC Act, which has its specific provisions under Section 53. The same section also allows your silence to be used against you, as corroborative evidence against the accused."
Baljit adds that such law is not in line with parliament's intention when the CPC was amended. "Convictions should be based more on evidence instead of relying on statements."
No check and balance
Opposition parliamentarians have objected to the lack of oversight for the MACC which is not accountable to Parliament the way the Malaysian Human Rights Commission (Suhakam) is. Instead, MACC has five monitoring committees, apparently to demonstrate its independence from the executive.
They are the Anti-Corruption Advisory Board, Special Committee on Corruption, Operations Review Panel, Corruption Prevention and Consultative Council, and the Complaints Committee.
However, the effectiveness of these committees in checking the MACC has so far been doubtful. Nothing was said when Umno member Halimi Kamaruzzaman claimed physical abuse at the hands of MACC officers in January 2009 while being questioned in connection with a money politics case.
Even Teoh's death, a public interest issue, has not yet been discussed by the committees, advisory board member Tan Sri Simon Sipaun tells The Nut Graph on 29 July.
Sipaun "Our role as advisors is not proactive enough, and I intend to raise this in the next meeting. I get the impression that MACC officers can be rather defensive; they argue that the law allows them to do this or that. But I don't think it's the intention of the law to be used in a way that causes harm to people," he says.
Indeed, the roles of the advisory board and committees as spelt out in Section 13 of MACC Act appear rather passive in nature. The advisory board is to "receive, scrutinise and endorse proposals from the commission". The advisory role is limited to dealing with corruption as a problem per se.
Head of the Operations Review Panel Tan Sri Hadenan Abdul Jalil tells The Nut Graph: "Let's wait for the Royal Commission of Inquiry to make its recommendations, and then the advisory panel can help the MACC to implement them."
Remove immunity
In the absence of an effective check-and-balance system, lawyers like Baljit feel the ouster clause in Section 72, which provides immunity to MACC officers from legal action, should be repealed.
"They can't be sued unless they acted in bad faith, which is difficult to prove," Baljit notes. The suit filed by Kajang municipal councillor Tan will be a test case of this provision.
Both Baljit and Rajpal hope the Royal Commission of Inquiry into MACC's investigation procedures will look into the abovementioned aspects. Both also feel that the inquiry's scope should be expanded to probe Teoh's death, instead of leaving it to a separate inquest.
"There are so many unanswered questions on the procedures taken, and they are all related to the death," says Rajpal.
"We are paying the price of rushing the MACC bill through Parliament," adds Baljit.
And Sipaun says, "Common sense and respect for fellow human beings tells us that when a person is only a witness, he shouldn't be held overnight. Public perception of the MACC is very bad now. I haven't met a single lay person who has good things to say about the MACC." 
http://www.thenutgraph.com/problem-with-macc
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