CRIMINAL LAW– MALAYSIAN ANTI-CORRUPTION COMMISSION – POWER OF ARREST AND EXTENSION OF REMAND

The recent arrest of company directors and continued remand using Section 117 of the Criminal Procedure Code has sparked widespread unrest about the possible misuse of Malaysian Anti-Corruption Commission’s (“MACC”) power.

What are the powers of MACC on detention of suspects?

  • Section 49(1) of the Malaysian Anti-Corruption Commission Act 2009 (“MACC Act 2009”) says all offences under the MACC Act are “seizable offence”(s).
  • Seizable offence” means offence which MACC officer may arrest without a warrant.

What happened after a person is detained by MACC?

  • A person can be detained by the MACC for offences investigated under the MACC Act.
  • However, he cannot be detained for more than 24 hours without being produced before a magistrate. This rule is set out in Article 5 clause 4 of the Federal Constitution.

What happened if he needs to be detained for more than 24 hours?

  • Article 5 clause 4 of the Federal Constitution says a person cannot be detained for more than 24 hours.
  • MACC is not allowed to utilize Section 117 of the Criminal Procedure Code (“CPC”) to go before a Magistrate to extend a remand pursuant to the principle of generalibus specialia derogant.
  • Hence, when a person is detained and further investigation is required, MACC has to first release the person from custody on a bail or bond with or without sureties.

What happened if a person is unable to pay the bail or bond?

  • The difficulty arises when a person cannot afford to pay the bail or bond requested by MACC.
  • He still cannot be arrested for more than 24 hours. In such situation, a judicial review may be filed to determine what is the “reasonable sum of money” as bail and bond.

Under what circumstance can a person be produced before the Magistrate for extension of remand?

  • This is set out in Section 49(2), (3) and (4) of the MACC Act 2009.
  • A person can only be produced before a Magistrate when the condition of the bail or bond is broken or likely to be broken and he/she is re-arrested and not released within 24 hours.
  • Keeping in mind, this only happens when there is a re-arrest.
  • MACC is not allowed to produce a person before the Magistrate for extension of remand without going through the processes in Sub-Sections 49(2), (3) and (4). The Magistrate would not have power to grant remand under the circumstances.

What happened if MACC detained a person for more than 24 hours on the first arrest or re-arrest without production before a Magistrate?

  • The arrest would be unlawful. The person so arrest may sue MACC for wrongful arrest

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    https://www.malaysiakini.com/news/665321

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