Introduction
 
The fundamental liberty of individuals towards personal freedom is deeply enshrined in Article 5 of the Malaysian Federal Constitution. The act of remanding an individual inherently infringes upon this fundamental liberty, and thus can only be done through strict adherence with the provisions of the law.
 
To maintain the delicate balance between safeguarding the fundamental rights of individuals towards personal liberty and the needs of enforcement agencies to investigate offences without undue interference, it is enshrined in Article 5(4) of the Federal Constitution that every individual arrested shall not be detained for a period exceeding 24 hours unless a remand order is granted by the Magistrates’ Court.
 
MACC’s Pursuit of Remand Orders
 
The Malaysian Anti-Corruption Commission Act 2009 (“MACC Act”) is the primary legislation in Malaysia which governs the powers of the Malaysian Anti-Corruption Commission (“MACC”) in investigating and prosecuting corruption-related offences in the public and private sectors. Notwithstanding this, reliance is often placed by the MACC on Section 117 of the Criminal Procedure Code (“CPC”) to obtain remand orders against individuals arrested for investigations of corruption-related offences under MACC Act. In essence, where an investigation cannot be completed within 24 hours, Section 117 of the CPC lays down the general procedure for a remand application to be made to the Magistrates’ Court.
 
Reliance placed by the MACC on Section 117 of the CPC is likely attributable to the fact that Section 49 of the MACC Act does not confer powers on the MACC to obtain a remand order against individuals following the expiry of the initial arrest and detention period i.e. 24 hours. On the contrary, a plain reading of Section 49 of the MACC Act appears to suggest that a remand order can only be obtained against individuals investigated under the MACC Act where the said individual has been released and thereafter re-arrested for breaching the initial conditions stipulated for the release.
 
This raises the important question as to whether the MACC can validly rely upon Section 117 of the CPC to obtain remand orders against individuals subjected to investigations under the MACC Act, especially in the face of Section 49 of the MACC Act which does not provide for the same. In considering this pivotal issue, the learned Judicial Commissioner Roslan Mat Nor (“Judicial Commissioner”) held in his ground-breaking judgment in Public Prosecutor v Sathivel a/l Subramaniam & 5 Others (Criminal Application No. CB-43(A)-1-05/2023) that the MACC cannot rely on the CPC to remand individuals for investigations conducted under the MACC Act.
 
The case of Public Prosecutor v Sathivel a/l Subramaniam & 5 Others
 
This case pertains to the arrest of six police officers by the MACC on suspicion of receiving bribes worth RM5,000.00, which is an offence under Section 16(a)(A) of the MACC Act. The said individuals were subsequently produced by the MACC before a registrar of the Temerloh Court, and the registrar granted a six day remand order against the individuals pursuant to Section 117 of the CPC.
 
In considering the validity of the remand order, the learned Judicial Commissioner took the liberty to scrutinise the genesis of Section 49 of the MACC Act, by conducting a detailed examination of the parliamentary debates in the Hansard concerning the enactment of previous anti-corruption laws and the subsequent introduction of the MACC Act, which sought to consolidate all the previous anti-corruption laws into a single Act. In doing so, the learned Judicial Commissioner found that Section 49 of the MACC Act was enacted to specifically provide for the handling of arrest procedures where an individual is arrested for offences under the MACC Act.
 
Applying the maxim generalibus specialia derogant¹, the learned Judicial Commissioner held that Section 49 of the MACC Act would prevail when dealing with offences under the MACC Act, and to that extent, the general provisions of the CPC do not affect its operation. In other words, the learned Judicial Commissioner held that arrests made under Section 49 of the MACC Act must comply with the specific procedure stipulated therein, and that no other procedure can be used. This is in accordance with Section 67 of the MACC Act which is clear and unequivocal that the provisions of the MACC Act shall apply to an offence established under the Act.
 
Notwithstanding the fact that every offence under the MACC Act is a seizable offence for the purposes of the CPC², the learned Judicial Commissioner found that the remaining provisions of Section 49 of the MACC Act are sufficiently clear to exclude the operation of Section 117 of the CPC.
 
What then is the proper procedure to be adopted for investigations under Section 49 of the MACC Act? In this regard, the learned Judicial Commissioner found that where an investigation by a MACC officer cannot be completed within 24 hours, the powers of the MACC against the arrested individual is confined to those set out in paragraphs (a), (b) and (c) of Sections 49(2) of the MACC Act – that is to require the individual to deposit a reasonable sum of money and/or execute a bond, as the MACC may deem fit.  
 
It is only in situations where the MACC finds that there is non-compliance with paragraphs (a), (b) or (c) of Sections 49, or where there is a failure by the individual to report to the MACC office for investigation, that the individual can then be re-arrested under Section 49(3) of the MACC Act and an application for remand can be made under Section 49(4) of the MACC Act.
 
Interestingly, the learned Judicial Commissioner opined that when an arrest is made under Section 49(1) of the MACC Act, it should be the case that the investigation has already been completed whereby the arrest is merely to take appropriate action against the individual arrested.
 
Having reached the above conclusions, the learned Judicial Commissioner found that the remand order granted by the registrar under Section 117 of the CPC was incorrect and invalid in law, as the six individuals remanded had not violated any order under paragraphs (a), (b) or (c) of Section 49(2) of the MACC Act so as to render them liable to be re-arrested and presented for remand. On this basis, the learned Judicial Commissioner exercised its revisionary powers to set aside the remand order.
 
Conclusion
 
The judgment handed down by Judicial Commissioner Roslan Mat Nor represents a ground-breaking and unprecedented decision that significantly impacts the investigative powers of the MACC into corruption-related offences. The Public Prosecutor has appealed the decision of the Judicial Commissioner to the Court of Appeal.
 
If the Court of Appeal upholds the Judicial Commissioner’s decision, it will undoubtedly impose significant limitations on the MACC’s authority to remand individuals for the purposes of investigating corruption-related offences, whereby the MACC shall henceforth be barred from relying on the CPC to remand individuals investigated for offences under the MACC Act. Instead, the MACC’s investigative powers in relation to corruption-related offences shall strictly be confined to the express provisions of the MACC Act, which does not allow for the remand of an arrested individual unless the individual is subsequently re-arrested under Section 49(3) of the MACC Act for breaching any conditions imposed by the MACC pursuant to the initial release.
 
It will be interesting to observe how the Malaysian appellate courts will interpret the relevant provisions of the MACC Act and the CPC, bearing in mind the fundamental importance of safeguarding the rights of individuals towards personal liberty under Article 5 of the Federal Constitution.
 
Case note by Lim Koon Huan (Partner), Manshan Singh (Partner) and Ho Pui Yan (Associate) of the White-Collar Crimes Practice of Skrine.
 
 

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