When Reasonable Suspicion is Reasonable

The recent call for the Public Service Commission to speak up regarding the Chief Commissioner of the MACC for the purpose of standing him down while the matter is investigated on the grounds of Regulation 43(1) as quoted (the writer quoted the wrong Regulation – it should be Regulation 45(1)) in the Malaysian Insight
https://www.themalaysianinsight.com/s/362196 (the Malaysian Insight Article) would not be appropriate and unreasonable for the following reasons :

The said Regulation is reserved for facilitating the investigation of an officer alleged or is reasonably suspected of having committed any criminal offence under any written law or having committed a serious breach of discipline.

In the case of the Chief Commissioner of the MACC, this all blew up over unconfirmed and unverified allegations of impropriety with regards to holdings in two companies.

It is important to keep in mind the following when it comes to being able to reasonably suspect the Chief Commissioner of having committed any crime or breach of any criminal law:

  • The only crime or breach of criminal law possible is a breach of section 25 read with section 29A of the Security Industry Central Depositories Act 1991 – this carries a punishment of up to 10 years imprisonment;
  • There is no evidence to suggest that a crime has been committed;
  • It is perfectly legal in Malaysia to hold shares as a nominee with no beneficial interest for someone else (meaning that you are not the beneficial owner of the shares);
  • The Chief Commissioner made it abundantly clear that he is a nominee holder of the shares with no beneficial interest in a press conference dated 5.1.2022;
  • A report was made to the Police regarding the articles published alleging impropriety stating that the article contained lies and the matter is currently under police investigation;
  • On 12.1.2022, the Chief Commissioner has filed a defamation case against the journalist for making unsubstantiated claims in the article.

Now if there were any truth to the articles or allegations, you can be sure of the following:

  • That the evidence would have been published in the articles – yet to date no such evidence was published;
  • That the MACC Senior Officer and a JPJ officer would not have filed a report with the Police and instigate their involvement for fear of repercussions; and
  • That the Chief Commissioner, a legally qualified and experienced investigator, would not have so boldly made such public admissions on the record about the share transactions.

It is clear that on the balance of probabilities, there is no evidence whatsoever to reasonably suspect the Chief Commissioner of committing any criminal offence.

Clearly, the Chief Commissioner is aware of how the share transactions took place, and the procedures were correctly followed for a nominee holding – otherwise he would not have been so comfortable telling the whole country of this in the press conference.

The Securities Commission (“SC”) is currently investigating the transactions – they will have all the details already on file to see if the correct paperwork was completed at the time of the share purchase. It is either there is or isn’t!!It is as simple as that. It would not take long to establish the truth of this – why they are dragging their feet on such an easy enquiry is beyond me. But the fact that the Chief Commissioner so brazenly told the country of the nominee status tells me he knows he did it right.

So given that there can be no reasonable suspicion of the MACC Chief Commissioner having committed a criminal offence, should he really be stood down over what appears to be nothing but a defamatory claim made without basis?

I don’t think so.

As for the allegation aspect, surely any allegation must be reasonably sure of being true before standing someone down. Merely alleging someone has done something should not be sufficient to stand someone down. A perfect example of this is someone from another country that has never set foot in Malaysia could claim a public servant assaulted them – it is a complete fabrication but they could be stood down if we go by Rais Yatim and the writer’s call. This is ridiculous to say the least!!!

You cannot simply make an unfounded, baseless or unsubstantiated allegation against a high ranking official, and without any proper basis ask them to go on garden leave!! This sets a very dangerous precedent and makes a mockery of the due process of the law!!!

The second issue raised in the Malaysian Insight Article is the apparent “conflict of interest” in the MACC Chief Commissioner investigating the SC. He simply failed to appreciate the role, powers and processes involved in such investigations!!

If the MACC Chief Commissioner was acting on his own, and conducting the actual investigation, and able to lay charges on his own, it may be possible. However, that is not the case. The following must be considered:

  • There were allegations of wrong-doings against various SC officers – it is important to note that it was not instigated or initiated by the Chief Commissioner;
  • It is the mandate of the MACC to investigate such matters and they must carry out this mandate;
  • The Chief Commissioner is not the person who will conduct the actual investigation – that is ridiculous to think that – it is the investigative team that carry out this work;
  • The Chief Commissioner has no power to demand charges are laid where there is no evidence of wrong-doing;
  • Any and all recommendations for charges to be laid must go to the Attorney General for his evaluation and final decision.

Given all of the above, any suspicion of a potential or apparent conflict are negated by the actual processes involved.

And the final issue alluded to in the Malaysian Insight Article is the alleged “cross probing” of investigations between the SC and MACC into each other. What a load of nonsense!!

Neither entity can simply “start an investigation” without a report being made. In the case of the SC investigating the MACC Chief Commissioner, we all know how this came about – it is due to the unfounded allegations published in the media as discussed above. As the allegation involved trading in securities, the SC is the one entity with the mandate to investigate such matters, however baseless.

The investigation of the MACC into the SC is not a “tit-for-tat” return investigation. As mentioned, it is because they have received a report, and again, the entity with the mandate for investigating such allegations is the MACC. It is “busines as usual” for them. I am sure they will be attacked if they halt the investigation into the matter merely because their Chief Commissioner is being investigated by the SC!! They must carry out their mandate without fear or favour, and cannot shirk their responsibilities. Is this too wrong?

Both investigations must be conducted for the public to have trust in the organisations in place.

What must be remembered however, is that allegations must be proved for charges to be laid, and that evidence is passed to the Attorney General for his evaluation and approval for charges to be laid.

It is only as a result of the evidence being uncovered that you can have reasonable grounds to suspect that there have been breaches. Where there is no evidence, it is unreasonable suspicion.

We really have to apply our mind and think hard before making such dangerous and silly calls or statements as it has the tendency to mislead the public, create wrong perception and worst still undermine public confidence in the officials and also the enforcement agencies!!DO we really want that!!!!

By Kali

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