MACC: There are exceptions to right to legal representation

 

The constitutional right to legal representation does not always mean witnesses and suspects will have access to their lawyers during an investigation, said the MACC.

Its deputy director in charge of the legal and prosecution division, Wan Shaharuddin Wan Ladin, cited legal precedent where such rights are suspended in certain circumstances.

He said this after Lawyers for Liberty criticised the graft buster on Thursday for not allowing lawyers to be present during the interrogation of suspects.

To this, Shaharuddin said MACC does not have a policy to restrict the right of arrested persons to consult their lawyers. Instead, they will be asked if they would like to contact their family members or their appointed legal counsel.

“However, in certain situations, there are legal provisions that suspend that right during the course of the investigation,” he said.

He pointed out that while the MACC Act 2009 does allow an accused person to have legal representation during examination under oath (i.e. when testifying in court), it does not explicitly grant the right to legal representation during other forms of interrogation or questioning.

The right to legal representation during an investigation can also be suspended under the provisions of the Criminal Procedure Code in some situations, such as when it hinders an ongoing investigation.

Full statement

Wan Shaharuddin’s statement is reproduced in full below:

I refer to a recent statement by Lawyers for Liberty (LFL), that the MACC forbids an arrested person from having their legal counsel present while under investigation, especially when their statements are being recorded claiming that it is “an obvious and unacceptable tactic by the MACC to hinder lawyers from their duties.” (reported in The Star, June 8, 2023, and Malaysiakini BM).

The MACC wishes to impress upon, that as a legally empowered body, the commission acts according to the Federal Constitution. The MACC takes seriously the rights of a person who is arrested and cannot act arbitrarily to “hinder lawyers from their duties” as maliciously suggested by the LFL.

First of all, the MACC does not, as a policy, restrict the right of an arrested person to consult with a lawyer throughout the investigation process. In fact, the investigating officer will inform the arrested person whether they wish to contact their family members or the appointed legal counsel.

Secondly, however, in certain situations, there are legal provisions that suspend that right during the course of the investigation. The LFL should refer to the reasoning provided in the judgment of the case of Malaysian Anti-Corruption Commission & Ors v Latheefa Beebi Koya & Anor [2017] 5 MLJ 349.

Under the MACC Act 2009, there is no specific provision that grants the right to have a lawyer present during the recording of a statement in the course of an investigation. The MACC Act deals with the examination of persons.

While it allows the accused person to have a legal practitioner present during an examination under oath, it does not explicitly grant the right to legal representation during other forms of interrogation or questioning.

This is upheld in the judgment by Federal Court judge Abu Samah Nordin, citing the following: “Articles 5(2) or (3) of the Federal Constitution did not confer any constitutional right on the complainant to be represented by counsel during the recording of his statement as a witness.”

The judgment further states: “The complainant was a witness and not a suspect nor an arrested person or a person ‘unlawfully detained’. The respondents’ contention that their client had a constitutional right under Article 5 to be represented by counsel was just a bare assertion without authority to support it.”

Thirdly, the mentioned rights, however, can also be suspended during the course of an investigation, in accordance with the provisions under Criminal Procedure Code. Based on the case of Datuk Hasanah Ab Hamid v MACC and the Government of Malaysia, judge Nordin Hassan dismissed Hasanah's lawsuit, which argued that the notice issued by the MACC under Section 28A(8)(9) of the CPC restricted her from consulting with her lawyer during the remand period.

The Honorable High Court judge stated that the right to consult with a lawyer begins from the day of arrest but cannot be exercised if it hinders the police or MACC officers from carrying out their investigation duties.

The provisions under Section 28A (8) and (9) of the Criminal Procedure Code (CPC) do not completely restrict the right of a person who is arrested to consult with their appointed lawyer. Instead, they suspend the exercise of that right during the ongoing investigation.

Hence, the two cases cited above cater to two different situations – i.e. for a witness and for an accused.

Generally, although Article 5(3) of the Federal Constitution guarantees the right to legal representation during criminal proceedings, it is subject to certain exceptions, including situations involving national security (for example, Security Offences (Special Measures) Act 2012), or other limitations imposed by specific laws where the accused person's right to counsel may be restricted.

While an arrested person generally has the right to consult with a lawyer from the moment of arrest, the specific limitations on the presence of lawyers during the recording of statements may vary. It is important to note that the absence of a specific provision allowing lawyers to be present during the recording of statements does not mean that legal representation is entirely prohibited during the investigation process.

In conclusion, the statement by the LFL does not reflect the actual actions taken by the MACC in ensuring the protection of the rights of individuals who are arrested in accordance with the provisions of the law.

Datuk Wan Shaharuddin Wan Ladin
Deputy Director
Legal and Prosecution Division
Malaysian Anti-Corruption Commission

June 9, 2023

- Mkini