PETALING JAYA: It is ironic that lawyer Latheefa Koya, who once took the Malaysian Anti-Corruption Commission (MACC) to court, is now leading the anti-graft agency.
Latheefa and another counsel, Murnie Hidayah Anuar, had challenged a MACC notice to them to provide statements to assist in the investigation into the National Feedlot Corporation (NFCorp) case.
The lawyers had acted for former NFCorp consultant Shamsubahrin Ismail and had accompanied him to the MACC office to have his statement recorded.
Subsequently, on March 19, 2012, the MACC issued a notice to compel Latheefa and Murnie Hidayah to be present at its headquarters in Putrajaya to give statements and assist in the investigation involving NFCorp executive chairman Mohamad Salleh Ismail.
They refused to go and challenged the notice.
Latheefa and Murnie had contended that the notice was void and contravened provisions under Article 5(2) of the Federal Constitution.
Justice Zaleha Yusof had ruled, in the High Court, that the notice was invalid and an abuse of power. She also ruled that MACC officers did not have the authority to record statements from lawyers who accompanied their clients.
The Court of Appeal later affirmed the High Court decision.
However, on Aug 9, 2017, a five-member apex court bench ruled that the notice could not be questioned in court.
This case established a legal principle which is often cited by lawyers in civil and criminal law cases.
The then Federal Court judge Abu Samah Nordin said the MACC could not carry out investigations if its work was subject to a challenge by way of judicial review.
“The notice is valid and not subject to judicial review,” said Abu Samah who delivered the judgment.
He said it could not have been the intention of Parliament to prevent investigation agencies such as the MACC to carry out their work.
The bench was led by then Chief Judge of Malaya Ahmad Maarop, who is now the Court of Appeal president.
The others were just retired chief justice Richard Malanjum, who was then Chief Judge of Sabah and Sarawak, and Federal Court judges Hasan Lah and Balia Yusof Wahi, who are no longer in office.
Abu Samah said Article 5 of the Federal Constitution stated that an arrested person shall be allowed to consult and be defended by a lawyer of his choice.
He said it was clear that this right was only accorded to a suspect and not to a witness. In the present case, he added, the lawyers had only been called as witnesses.
Latheefa, who spoke to reporters after the decision, said the ruling appeared to have undermined the role of counsel to their clients, including accompanying them when being questioned by the investigation officer.
Failure to abide by the notice is an offence under Section 48(c) of the MACC Act 2009 and carries a maximum RM10,000 fine or two years’ jail or both, upon conviction.