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

This article was prepared on June 9, 2023

I refer to a recent statement by Lawyers for Liberty (LFL), that the Malaysian Anti-Corruption Commission (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, 8 Jun 2023)

The MACC wishes to impressed 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 and foremost, the MACC does not restrict the right of an arrested person to consult with a lawyer throughout their investigation process. In fact, the investigating officer will inform the arrested person whether they wish to contact their family members or the appointed legal councils.

Secondly, however, there are legal provisions and precedent cases that suspends the 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 before making future statements on this matter. 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.

It is important to note that the absence of a specific provision for legal representation during interrogation does not mean that an accused person has no constitutional right to legal representation. The right to legal representation during criminal proceedings is generally recognized as a fundamental principle under the Federal Constitution of Malaysia.

However, during the examination of a person under oath, the accused person does not have an automatic right to have counsel present. If the person being examined under oath is a public officer, the officer may be required to answer questions without the presence of counsel.

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, Justice Datuk Nordin Hassan dismissed Datuk 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 temporarily suspend the exercise of that right during the ongoing investigation.

Although Article 5(3) of the Federal Constitution guarantees the right to legal representation during criminal proceedings. However, 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.