Daim’s lawyer Tommy Thomas says if AGC’s powers can be reviewed by the court, so too can MACC’s

January 17, 2024

Daim’s lawyer Tommy Thomas says if AGC’s powers can be reviewed by the court, so too can MACC’s

Daim's lawyer Tommy Thomas says if AGC's powers can be reviewed by the court, so too can MACC's

KUALA LUMPUR (Jan 16): Former attorney general Tan Sri Tommy Thomas, who is representing Tun Daim Zainuddin and his family members, said the Federal Court had in the past allowed the Attorney General Chambers’ powers to be reviewed, so it can similarly allow the Malaysian Anti-Corruption Conmission’s (MACC) investigative powers to be reviewed in Daim’s case.

Citing the landmark Sundra Rajoo vs PP case, he argued that it provided development of the law, where the Federal Court ruled that the AG’s constitutional power under Article 145 (3) of the Federal Constitution can be reviewed or amenable to judicial review if one could show illegality or irrationality of the decision.

Hence, Thomas submitted to the High Court on Tuesday that his team had shown prima facie (sufficient plausibility on first sight) that there is illegality and irrationality in the MACC’s investigation of a possible event of abuse of power that happened more than 20 years ago, and that this violated their clients’ rights under Article 5 of the Federal Constitution that relates to the liberty of a person.

Thomas also pointed out that the former finance minister and his family are being investigated under Section 23 of the MACC Act and Anti Money Laundering, Anti Terrorism Financing and Proceeds of Unlawful Activity 2001 (AMLA) — Acts which were formulated after he had retired as a public official.

“Hence, the imposition of Section 4 (to freeze the accounts for purported money laundering) is considered inappropriate under Article 8, as it is being initiated retrospectively with regard to the law.

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“Furthermore, Daim is already 85, and he may not remember events of 25 to 26 years ago. This is unfair and may prejudice him. That is why a speedy investigation is required,” Thomas said, noting that the complaint was initiated after the Pandora Papers were revealed sometime in October 2021.

“The MACC began its probe in February 2023 by taking Daim’s statement and on June 7 last year, the MACC issued a notice under Section 4 of AMLA to freeze the bank accounts. Then on Dec 30, it issued a statement that the investigations are under Section 23 of the MACC Act for gratification of a public officer.

“However, when the MACC took a statement from Daim’s wife Na’imah last week, one of her lawyers overheard the conversation when Na’imah asked what were the offence they were investigating; the reply from a senior investigating officer was that there was no offence being investigated so far,” he said.

As such, he questioned how the MACC launched its probe if it had not identified any offence.

Hence, the applicant contends that there is an illegality and irrationality in the investigations into Daim and the others, as the offence has not been identified, Thomas argued.

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He also contended that it was wrong to freeze their bank accounts and seize Ilham Tower, as such action amounted to a violation of his clients’ rights under Article 13 of the Federal Constitution, which relates to a person’s right to property.

He added that the land at Ilham Tower had been bought prior to 2009 and the building was completed in 2015, so the MACC should be showing the purported illegal monies used to erect the building.

Thomas said the search and seizure power that the MACC acted upon, should be based on reasonable cause to suspect, and it has to show that the cash in the bank is related to an offence.

“The MACC has to show that the monies were never co-mingled and led to proceeds of the crime to buy or build the building. The MACC cannot go and seize the building, as it was built more than 10 years after Daim left public office,” he said.

The 60-storey Ilham Tower was seized by the MACC on Dec 18 last year.

For these reasons, Thomas said his team had successfully shown a prima facie case that the MACC conducted itself in an irrational and illegal manner, in freezing the accounts and seizing the building in the course of its investigations, and hence leave to initiate judicial review should be given.

“I could say there are loads of documents, files taken by the MACC in their probe that resulted in the accounts frozen and building seized, and the action of over six months since the freezing order shows the illegality and the freeze should be lifted,” he said.

High Court judge Datuk Wan Ahmad Farid Wan Salleh said he would deliver his decision on the leave application on March 4.

In the meantime, the MACC probe continues.