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MACC splitting hairs over the word ‘illegal’
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COMMENT | Simply put, defamation is the act of making untrue statements about an individual which damages his or her reputation and causes the public to look down on him or her.

A simple Google search on the phrase “MACC ikan bilis” will reveal hundreds of instances where the Malaysian Anti-Corruption Commission has been accused of picking on “small fry” instead of going for the “whales”.

Going by the strict doctrines of defamation, these statements could be considered defamatory but the best defence to defamation is the truth. Such statements demean MACC in the sense that action has only been taken against low-level corruption cases while high-profile people had been let away.

Over the years, these statements had been re-spoken by politicians, social activists, anti-graft advocates and quoted by journalists and published in newspapers.

No one has been sued or hauled to court but MACC chief Dzulkifli Ahmad went on television to deny such claims by saying: “If the action MACC had taken against those with the title of ‘tan sri’, ‘datuk seri’ and ‘datuk’, who are not ‘whales and sharks’, I don't know what ‘whales and sharks’ are supposed to be.”

But what he omitted to talk about is the case of SRC International which the MACC investigated and has nothing to show. This involved a few “datuks” and a “datuk seri” whose connections with the transfer of millions of ringgit from its accounts to the accounts of an individual and allegedly used, among others, the payments of credit card bills.

So, why is he getting so uppity when the MACC detention of Penang exco member Phee Boon Poh was described as “illegal”? Couldn’t he, as in the past, taken the stand and contended that it was legal?

Why has the MACC suddenly become so intolerant and sensitive about claims – not criticism – made against it? Shouldn’t it dismiss the matter with a one statement saying “the arrest was legal”? It has its own battery of legal experts seconded from the Attorney General’s Chambers who could have given proper advice.

Why the demand for an apology from Penang Chief Minister Lim Guan Eng and asking his lawyer Ramkarpal Singh to refrain from speaking? Why all the chest-thumping and brouhaha which we have not seen before?

To quote the lawyer, Penang High Court judicial commissioner Abdul Wahab Mohamed, in setting aside the five-day remand order issued on Aug 12 against Phee and two other men, had effectively ruled that their detention was illegal since it was based on an invalid order.

“Since the trio were detained based on an invalid order, the effect of Abdul Wahab’s decision was that they were indeed detained illegally by the MACC 24 hours after their arrest,” he was quoted as saying.

So, let’s stop splitting hairs and arguing on the semantics of the word “illegal.” Simply put, if the order to detain was invalid, the arrest too becomes invalid or illegal.

MACC on trial

The threat of legal action – civil or criminal – by an arm of the government is unhealthy for our society which is still reeling from the what is perceived as “biased” actions by various enforcement authorities and agencies.

At this juncture, it is timely for the MACC to re-look at its own conduct in the case of lawyer Rosli Dahlan who was unceremoniously arrested a day before Hari Raya Aidilfitri in 2007. He subsequently sued for wrongful arrest in a case dubbed as “The MACC on trial”.

To cut a long story short, the MACC had to put its tail in between its legs and retreated. In the settlement of the case, the statement read out by MACC assistant commissioner Saiful Ezra Ariffin said that it “regretted” the events that had taken place leading up to the suit, and said it did not wish to “prolong” the matter.

Rosli had initially claimed RM48 million but it was reported that he had “reached an agreement with the MACC” and hence the quantum is not known. Besides, the MACC would have picked up the costs. Without wanting to speculate, whatever money that was paid came from us – taxpayers.

So, another round of a legal battle – this time against Lim – will also be funded by taxpayers. Why should we be funding such trivial issues? If it goes to trial, the whole argument will be centred on the definition of the “legality” of Phee’s arrest.

Hypothetically, if the MACC loses its case, will Dzulkifli pay the costs out of his own pocket or will taxpayers be compelled yet again to undertake payment because of the folly of one man?


R NADESWARAN was a member of MACC’s advisory panel on consultation and corruption prevention, and had worked closely with the agency for over 25 years. Comments: [email protected].

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.

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