GEORGE TOWN: The High Court here will rule on March 7 whether Section 62 of the Malaysian Anti-Corruption Commission Act 2009 is in violation of the Federal Constitution.
Chief Minister Lim Guan Eng and businesswoman Phang Li Khoon want Section 62 to be declared unconstitutional as they claim it is against the tenet of “considered innocent unless proven guilty.”
Penang High Court judge Datuk Hadhariah Syed Ismail set the date after the defence and prosecution made their arguments.
Lim and Phang are facing charges under the MACC Act in relation to the sale and purchase of a bungalow in 2014 and separately filed the motion to declare Section 62 a violation of the Federal Constitution in early January.
Phang’s counsel Datuk V. Sithambaram said Section 62 must be struck down as “it is contrary to a right to fair trial and is in violation of the fundamental rights of the accused.”
He argued that the section infringes the accused’s constitutional right under Article 5(1) and Article 8(1) of the Federal Constitution.
“Section 62 of the MACC Act requires the defence’s statement and documents, which would be tendered as evidence, to be delivered to the prosecution before the start of trial.
“However, the right of an accused to be presumed innocent and right to silence are encapsulated in the Federal Constitution.
“Article 5(1) declares that no person shall be deprived of life or liberty save in accordance with law and Article 8(1) dictates that all persons are equal before the law and entitled to the equal protection of the law.
“The court has not called for defence and yet the prosecution is asking for the statement of defence, even before the court decides. This is against the presumption of innocence,” he told the court yesterday.
Gobind Singh, acting for Lim, said the provision favours the prosecution and discriminates against the rights of the accused.
He argued that Section 62 restricted the defence of the accused person by excluding the right of an accused to expand his defence further and produce further documents at the trial.
“It is against the provisions of equality under Article 8 of the Federal Constitution.
He also said the accused could be subjected to criminal consequences under Section 68 of the MACC Act for failing to comply with the Act’s provisions and be penalised under Section 69 of the MACC Act.
DPP Masri Mohd Daud said Section 62 of the MACC Act is not discriminatory and is procedural and a general provision.
“The Act does not stop the defence from making further submissions other than those which had been submitted,” said Masry.
“The arguments that Section 62 contradicts Article 5 of the Con-stitution is far-fetched! Article 5 refers to, among others, the rights to consult a lawyer and the rights to be informed of the grounds for an arrest.”
On June 30, last year, Lim was charged with obtaining gratification for himself and his wife Betty Chew by approving the conversion of two lots of agricultural land belonging to Magnificent Emblem into residential development while chairing a state Planning Committee meeting on July 18, 2014.
The offence under Section 23 of the Malaysian Anti-Corruption Commission Act, carries a jail term of up to 20 years and a fine of at least five times the value of gratification or RM10,000, whichever is higher.
He faces another charge under Section 165 of the Penal Code for using his position to obtain gratification by purchasing his bungalow in Pinhorn Road from Phang at RM2.8mil, below the market value of RM4.27mil, on July 28, 2015. The offence is punishable by a maximum of two years in jail or a fine, or both.
Phang, who is charged with abetment, faces up to two years in jail or a fine, or both.
Both Lim and Phang have pleaded not guilty. Their cases will be jointly heard between March and July.
Phang is respresented by Sithambaram, Hisyam Teh Poh Teik and A. Ruebankumar, while Lim by Gobind, Ramkarpal Singh Deo, R.S.N Rayer and Terence Naidu.