Category: The Attorney

[column width=”1/1″ last=”true” title=”” title_type=”single” animation=”none” implicit=”true”]

There has been much confusion over who ought to investigate the corruption allegation that has engulfed the MACC’s Chief Commissioner, Tan Sri Dato’ Sri Haji Azam bin Baki over alleged improper share trading / ownership between 2015 and 2016 involving millions of shares in two public companies.

The Anti-Corruption Advisory Board Chairperson (ACAB), Tan Sri Abu Zahar Ujang was first off the blocks to exonerate Azam Baki of any wrongdoing. Quite apart from the rest of the board members distancing themselves from his statement, Abu Zahar must have overlooked that he (or the ACAB) is not empowered under section 13 of the Malaysian Anti-Corruption Commission Act 2009 (MACCA) to investigate corruption allegations, let alone exonerate anyone.

Note however that MACC’s investigating officers (IO) are empowered under section 29 of the MACCA to investigate corruption allegations. But it would make no sense for this to happen given the embarrassing state of conflict the IO would find him/herself in having to investigate his/her own boss – the same man who would decide on his /her promotion, increment, postings, etc. Bad idea.

Next, the Securities Commission (SC) appears to have commenced investigation. Yes, they can. What is important to note here though is that SC is not investigating Azam Baki for a corruption offence. Instead, SC is investigating offences under sections 25 and 29A of the Securities Industry (Central Depositories) Act 1991 which are offences concerning the use of Azam Baki’s securities account by his brother to trade in the shares.

What about the Police? Well, according to Home Minister Datuk Seri Hamzah Zainuddin, police investigation has recently commenced. And rightfully so because the Police is empowered under Chapter IX of the Penal Code to investigate corruption offences involving a public servant.

If the investigation by the SC or the Police uncovers evidence of wrongdoing, these agencies can exercise enforcement powers provided under the law against Azam Baki. This is the crucial difference when considering the other entities below.

There have also been loud calls for a Royal Commission of Inquiry (RCI) and the Parliament Select Committee (PSC) to jump on the investigation bandwagon. While these entities legally can investigate Azam Baki, they do not possess any enforcement powers. At most, they can only make recommendations for action after which other enforcement agencies (like the Police / SC) would still have to conduct their own investigations. Clearly, this circuitous route is a waste of time and public funds.

Some have called on the Prime Minister Datuk Seri Ismail Sabri Yaakob to put on the investigation hat as well. This is ludicrous. The PM himself has no investigation or enforcement powers. However, the PM has the power, influence, and leadership impetus to direct enforcement agencies, like the Police, to conduct the investigation. In that respect, the PM has called on all quarters to allow the authorities to complete the investigation.

Finally, should the Yang di-Pertuan Agong (YDPA) investigate Azam Baki given that the MACC Chief is appointed by the YDPA under section 5 of the MACCA? Certainly not. Enforcement agencies in Malaysia are statutorily created to act in the name of the YDPA, under the leadership of the PM. Thus, it would be unnecessary for the palace to commence any investigation against Azam Baki. The YDPA can of course be guided by the outcome of these investigations, as well obtain the advice of the PM to determine if Azam Baki should keep his job.

[push h=”15″]

About the Author

Xavier is a Founding Partner of XK Law. He graduated with Honours from the University of London, United Kingdom. He is passionate about the law and finds pleasure in recognizing the application of law in everyday situations.

[push h=”25″]

Disclaimer: This post is not intended as a solicitation, is not legal advice, and is not a substitute for obtaining legal advice. You should not act upon any such information without first seeking qualified professional counsel on your specific matter

[/column]

[column width=”1/1″ last=”true” title=”” title_type=”single” animation=”none” implicit=”true”]

Since 17 December 2021, 45 lives have been lost. 40,000 people displaced. Over 50,000 cars damaged, not to mention the many buildings destroyed. Losses have been estimated at over RM20 billion. The numbers are painfully staggering.

Much has been said about official relief efforts. The frustration is palpable. However, as the scale of the damage sinks in, anger is mounting as to who ought to bear responsibility for the colossal losses.

Mother nature took the first blow – some have argued that the torrential rains that followed the monsoon cycle is to be blamed for the natural watercourses overflowing its capacity into surrounding developed areas. An “Act of God” they say. But one cannot sue God, can we?

Yet, others have pointed their fingers at the authorities for allowing the conversion of flood mitigation locations into townships. Or for not being aware of a missing pump at a water gate that impeded water clearing.

Developers have not been sparred too – there are reports that the Taman Muda Residents’ Association had repeatedly warned the authorities about the unbridled development that was taking place all around them, and the poor flood mitigation steps taken by these developers.

The question then is this – do the flood victims have a remedy in law against person(s) who can be shown to be responsible for the floods?

For a long time, the law saw flooding by rainfall as a naturally occurring event, and as such no one could be held liable for it. However, more recently the Courts have begun imposing liability where the use of land had resulted in the flooding damage, even if there was an unusual rainfall.

Flooding claims are usually brought under a class of tort law, known as Nuisance. Two English cases come to mind, namely Leakey & Ors v The National Trust (1980) and John Green v Lord Somerleyton (2003). These and other succeeding cases, read together, set out the legal considerations that go into deciding whether a defendant (whether an individual, developer or public authority), sued for being responsible for a flooding damage to occur on another person’s (claimant) land, has a legal duty of care to take steps to abate or minimise damage to the claimant: –

• Whether it was reasonably foreseeable that a hazard occurring on the defendant’s land may cause damage to the claimant;
• The extent of any damage that is foreseeable;
• Whether it was practicable for the defendant to take steps to abate or minimise the damage to the claimant; and if practicable, the extent and costs of those steps;
• The financial capacity of the parties.

Where it is held that the defendant could have taken reasonable steps to prevent damage by flooding (for example, building a retention pond / better drainage or maintaining water pumps) and the defendant failed to take those steps, the defendant could be held liable for losses suffered, including damage to property and loss of life.

However, these are not easy claims to prove in court, particularly where the defendant is a public authority. Extensive groundwork will have to be done to identify the causes of the flood, the parties responsible and the gathering of evidence.

Even so, if nothing is done, one does not have to be a clairvoyant to predict that another epic flood is probably just a monsoon away.

[push h=”15″]

About the Author

Xavier, a Founding Partner of XK Law graduated with Honours from the University of London, United Kingdom. He is passionate about the law and finds pleasure in recognizing the application of law in everyday situations.

[push h=”25″]

Disclaimer: This post is not intended as a solicitation, is not legal advice, and is not a substitute for obtaining legal advice. You should not act upon any such information without first seeking qualified professional counsel on your specific matter

[/column]

[column width=”1/1″ last=”true” title=”” title_type=”single” animation=”none” implicit=”true”]

Have you ever wanted to report someone for a disciplinary or criminal offence (“improper conduct”) but hesitated because you feared reprisal?

Then you may not have heard of the Whistleblower Protection Act 2010. This piece of law protects a whistleblower against civil / criminal action, intimidation / harassment, interference with your business or employment (e.g. demotion or termination). The Act also protects your personal information from being revealed to the wrongdoer.

There are two important conditions though. First, you must report the improper conduct to a government enforcement authority – not to your friend, an NGO or the media. Second, you must not have obtained the information (that is being disclosed) illegally e.g. information classified as government secrets.

See: High Court decision in Rokiah Binti Mhd Noor v Minister of Domestic Trade, Co Operatives & Consumerism & Ors and Another Appeal [2016] MLJU 1765

[/column]

[column width=”1/1″ last=”true” title=”” title_type=”single” animation=”none” implicit=”true”]

The Rule of Law is defined in the Oxford English Dictionary as “[t]he authority and influence of law in society, especially when viewed as a constraint on individual and institutional behaviour”

This includes the behaviour of any public authority – whether it is the Prime Minister, an enforcement agency, local authority or tribunal.

When a person is adversely affected by a decision of a public authority, he/she is not without redress. That decision may be reviewed (even quashed) in a legal process known as Judicial Review, on grounds of illegality, irrationality, procedural impropriety, proportionality or legitimate expectation.

See: Edgar Joseph Jr FCJ (as he then was) in R RAMA CHANDRAN v INDUSTRIAL COURT OF MALAYSIA & ANOR. [1997] 1 MLJ 145 (at p.186-187)

[/column]

[/column]

[column width=”1/1″ last=”true” title=”” title_type=”single” animation=”none” implicit=”true”]

Did you know that the privacy clause in your MySejahtera App encompasses an exception that suggests that your data may be used for other-than-covid19 specified purposes if the Government of Malaysia (GOM) has a legal obligation to do so?

In the Privacy Policy of the App, it is stated: “The Personal Data collected will not be used for any purpose other than those mentioned above, unless if required in order to comply with any legal obligation.”

What could these “ANY legal obligation” be? The phrase is disturbingly wide. It could mean virtually anything given that the GOM is under numerous legal obligations. Would the data be shared with enforcement authorities investigating a suspected crime (e.g. locating the suspect), or for the purposes of maintaining public order (e.g. discovering the identities of those who staged a peaceful assembly at a government office), or pursuant to a court order obtained by the government?

Note that the privacy protection under the Personal Data Protection Act 2010 does not apply to the GOM and by extension to the data collected via the MySejahtera App.

[/column]

[column width=”1/1″ last=”true” title=”” title_type=”single” animation=”none” implicit=”true”]

Can the former Prime Minister of Malaysia, Najib Razak, who was convicted of a criminal offence by a Malaysian High Court, seek re-election as a Member of Parliament at the next General Election?

The answer is in the negative – so long as that conviction stands. Najib’s conviction in the SRC trial is well above the RM2,000 fine and 1 year imprisonment disqualification threshold set out in Article 48(1)(e) of the Federal Constitution (FC) i.e. he was sentenced to 12 years imprisonment and a fine of RM210 million.

One may then ask – why is Najib currently permitted to hold on to his Member of Parliament seat? The answer lies in Article 48(4) of the FC. So long as Najib files an appeal in the Court of Appeal within fourteen days of the High Court conviction, he may continue serving as a member of Parliament until that appeal is heard and disposed of. Najib did file an appeal within that time frame and is currently pending a decision by the Court of Appeal.

Conclusion: Najib Razak may only stand for re-election at the next General Election, if his appeal against the High Court conviction is allowed by then, or if he receives a royal pardon by the King pursuant to Article 42 read with Article 48(3) of the FC .

Otherwise, the former Prime Minister may have to look for a new job.

[/column]

[column width=”1/1″ last=”true” title=”” title_type=”single” animation=”none” implicit=”true”]

Questions have been raised recently as to why a police report was not made in respect of the alleged theft of US$6 million in cash by three Malaysian Anti-Corruption Commission (MACC) officers during the investigation of an ex-spy chief corruption case.

See: https://lnkd.in/g8N3CQks

The act of switching the seized genuine US dollars into counterfeit US dollars, and thereafter pocketing of the former gives rise to a slew of potential offences under the Penal Code, including section 489A (counterfeiting bank notes), section 378 (theft), section 409 (criminal breach of trust by a public servant) and section 166 (public servant disobeying a direction of the law), to name just a few.

Is there a general legal duty under Malaysian law to report a crime?

The answer is in the affirmative. Section 13 of the Criminal Procedure Code provides inter alia that every person aware of the commission of any offence punishable under the Penal Code or any other written law SHALL in absence of reasonable excuse, immediately give information at the nearest police station of that offence. Further, section 202 of the Penal Code provides inter alia that if that person omits to given any information in respect of the offence (having had knowledge of it), he/she shall be punished with imprisonment or with a fine or both.

So, the burning question is this: Who in MACC had reasons to believe that a crime had taken place under its nose, and why was no police report made? Let’s hope the answers are forthcoming, especially when the crime is alleged to have been committed by the crime-busters themselves.

[/column]

[column width=”1/1″ last=”true” title=”” title_type=”single” animation=”none” implicit=”true”]

Several days ago, Malaysians woke up to the shocking news of an alleged personal data leak claimed to be from the National Registration Department (NRD) and the Inland Revenue Board (IRB). It was reported that a whole cache of personal data belonging to 4 million Malaysians was up for sale on the internet. Troubling indeed.

See: https://lnkd.in/g2Pf2-us

IRB has denied the leakage. JPN has denied it too. The Police are investigating.

Needless to say, the question on everyone’s mind is this: Isn’t my personal data protected under Malaysian law?

The only piece of legislation in Malaysia that regulates personal data processing is the Personal Data Protection Act 2010 (“PDPA”). Section 9(1) provides inter alia “A data user shall, when processing personal data, take practical steps to protect the personal data from any loss, misuse, modification, unauthorized or accidental access or disclosure, alteration or destruction…”.

But before you jump for joy, you may want to note that the PDPA only applies to “commercial transactions” and not to the Malaysian Government. Section 3(1) clearly states, “This Act shall not apply to the Federal Government and State Governments”. You may find this disappointing especially when there is no real justification why the Government should be exempt from being bound by the stringent data protection mechanisms made mandatory under the PDPA. In fact, the Government should stand as an example of how personal data ought to be properly protected. For example, in the UK , the government is bound like any other commercial organisation to protect the personal data it collects – see UK’s Data Protection Act 2018.

So, if there is evidence that some officer in some government agency with nefarious intentions, had indeed abused your data for a quick buck, would he/she get away scot-free? Not really. He/she may charged for a criminal offence under section 4(1) of the Computer Crimes Act 1987 read with section 3(1) of the same Act i.e. securing data without authorisation with intention to commit an offence involving fraud or dishonesty. If the authorities do find this irresponsible individual, and he/she is convicted in a criminal court for this offence, he/she may have to fork out a fine of up to RM150,000 or spend time thinking about his/her despicable behaviour in prison for up to 10 years, or even both.

Let’s hope the authorities do get to the bottom of this. In the meantime, we should talk to our MPs to have the PDPA amended, so that our Government is also held accountable for our personal data. Malaysians have a right to feel secure about their personal data especially when we do not have the choice of NOT giving our personal data to JPN or any other government agency for that matter.

As to whether our data is currently safe in JPN, your guess is as good as mine!

[/column]

[column width=”1/1″ last=”true” title=”” title_type=”single” animation=”none” implicit=”true”]

You may be wondering how did Pontian Member of Parliament, Ahmad Maslan get acquitted by the High Court from charges of money laundering and giving false statements to the Malaysian Anti-Corruption Commission – even before trial was completed? Why did MACC discontinue the criminal case in Court against him?

See: https://lnkd.in/gr9yFNnY

What most people don’t know is that all offences under the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 are compoundable under section 92. This means that if MACC (not the Court) is satisfied that Ahmad Mazlan is a “person reasonably suspected of having committed the offence”, MACC can offer him an opportunity to pay a certain sum of money (think of it like a traffic summons payment but a lot higher) in return for them to withdraw that criminal case against him. How sweet of MACC!

It is important to note that the decision to let Ahmad Maslan walk away with a compound payment was made by MACC (with the consent of the Public Prosecutor) – not the High Court. Since MACC made that offer to Ahmad Maslan and he accepted it, MACC would then have withdraw the criminal case against him. In that sense, the Court had no real choice but to discharge the MP.

So, you may ask – having paid the painfully huge compound, can Ahmad Maslan be said to be guilty of the two offences he was originally charged for in Court? Nope. As tempting as the logic may seem, such a conclusion would be legally inaccurate. At best, the potential Deputy Speaker of Parliament can be said to be “reasonably suspected” to have committed those offences. Note the difference. The former is a finding of criminal guilt by a Court. The latter is a suspicion only.

What is interesting is this – Ahmad Maslan was originally charged for not declaring RM2 million to the Income Tax authorities (believed to be proceeds of illegal activities he received from the former prime minister, Najib Tun Razak).

The compound that he paid was RM1.1 million. Think about that.

[/column]

[column width=”1/1″ last=”true” title=”” title_type=”single” animation=”none” implicit=”true”]

The defence of “political donation” features prominently in several high profile corruption cases working its way through the Malaysian courts presently. This is not surprising given that political donation per se is not illegal in Malaysia. Provided that such a donation is not solicited/accepted with “with ill feelings”, or “with evil intention”, or “purposely doing an act which the law forbids”, or is not “an inducement to do an official act or conduct”.

See: In Public Prosecutor v. Datuk Hj. Harun b. Hj Idris (No. 2) [1977] 1 MLJ 15

[/column]