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Monday, August 7, 2017

Court declares Sec 62 of MACC Act null and void

In a landmark decision today, the Court of Appeal has struck out a provision in the Malaysian-Anti Corruption Act 2009 which required an accused person to file his or her defence before trial.
The ruling was made following an appeal by Penang Chief Minister Lim Guan Eng and businessperson Phang Li Koon to declare Section 62 of the said law ultra vires of Articles 5(1) and 8 of the Federal Constitution.
The three member panel led by Justice Umi Kalthum Abdul Majid unanimously struck out Section 62 and declared it null and void.
The other judges in the decision were Justice Ahmadi Asnawi and Justice Abdul Rahman Sebli.
"The High Court order that requires the defence statement be submitted within 14 days is set aside," Justice Umi Kalthum said.
Lim is presently on trial for receiving gratification from Phang. Lim has claimed that he is a victim of a political conspiracy.
However, the bench allowed a stay of proceeding of today's decision on an oral application by DPP Mohd Masri Daud, who heads the MACC prosecution division, after Lim's lead counsel Gobind Singh posed no objection to the application. 
Lim thanked his lawyers but admitted that he is facing an "uphill battle" as the matter will be up for appeal by the prosecution at the Federal Court.
At one point during the hearing, Justice Abdul Rahman remarked that the controversial provision is "like giving the MACC a shotgun while giving the defence a walking stick".
Prior to this decision, all accused persons under Section 62 to prepare their defence statements pre-trial - a copy of which will be handed to the prosecution.
Phang's lawyers V Sithambaram and Hisyam Teh Poh Teik argued that the provision was against the constitution, especially Article 5 (Liberty of a Person before the law) and Article 8 (Equality).
Sithambaram said that normally in a criminal trial, a person is presumed innocent until proven guilty and that the prosecution will present its case, before the judge would decide whether a prima facie case can be brought against the accused, or his defence should be called. 
The provision (Section 62), he added, was akin to putting an accused the "other way round", where he/she is presumed guilty first (by asking for a defence statement). 
"As a result of this provision, we have problems with preparing the defence statement after the prosecution gave us some documents as required under Section 51A of the Criminal Procedure Code, " he said.
"What if we had prepared the defence, and the prosecution decides to head in another way, using evidence which they had withheld and was not submitted to us? This would affect my client's right to a fair trial."
Hisyam highlighted three ongoing corruption cases, which to his knowledge, are on appeal, due to Section 62. 

According to Gobind, MACC seized about 1,300 documents pertaining to the case but not all were given to the defence. 
DPP Mohd Masri said the purpose of Section 62, is to expedite cases before the trial begins, so it would be fair to the person accused, as well as to the public. 
He further added that the defence was at liberty to ask for additional documents during the trial. - Mkini

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