Law does not state lawyers must be present during questioning, says MACC

PETALING JAYA: The law does not specify that a lawyer must be present during questioning, says the Malaysian Anti-Corruption Commission in response to claims that they had breached the rights of suspects.

MACC deputy director (Legal and Prosecution Division) Datuk Wan Shaharuddin Wan Ladin said under the MACC Act 2009, there was no specific provision that granted the right to legal representation when recording a statement.

"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," Wan Shaharuddin said in a statement on Friday (June 9).

He said this had been upheld in two court judgments, "Malaysian Anti-Corruption Commission & Ors v Latheefa Beebi Koya & Anor [2017] 5 MLJ 349" and "Datuk Hasanah Ab Hamid v. MACC and the Government of Malaysia".

The first case dealt with legal representation for a witness while the second was for an accused, he said.

"The mentioned rights can be suspended during the course of an investigation in accordance with provisions under the Criminal Procedure Code".

Provisions under Section 28A (8) and (9) of the Criminal Procedure Code (CPC) did not completely restrict the right of a person who was arrested to consult with their appointed lawyer, he said.

"Instead, they temporarily suspend the exercise of that right during the ongoing investigation."

On Thursday (June 8), Lawyers for Liberty claimed to have received several complaints of cases where the MACC did not allow lawyers to be present during questioning.

LFL director Zaid Malek said the complainants' lawyers were told that they would also have to give their statements if they insisted on being present with their clients during questioning.

Wan Shaharuddin said although Article 5(3) of the Federal Constitution guaranteed the right to legal representation during criminal proceedings, it was subject to certain exceptions.

This included cases involving national security or other limitations imposed by specific laws where the accused person's right to counsel may be restricted, he said.

"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", read the statement.