LETTER | Lawyer Rajesh Nagarajan has reportedly accused the MACC of “gross abuse of power” for refusing to allow him to be present with his client, Wira Dani Abdul Daim, the eldest son of Daim Zainuddin, during questioning.

The lawyer said Wira presented himself at the MACC headquarters in Putrajaya on Thursday (Aug 22) at 9.30am to provide a statement into an ongoing investigation into Daim, even though no clear allegations have been specified, only to bar Rajesh from attending the questioning.

“The denial of the right to legal advice and representation is in flagrant breach of the constitutional rights of Wira as guaranteed in Article 5(3) Federal Constitution,” Rajesh said in a statement on Friday (Aug 23).

It must be said that the law distinguishes between a suspect or an arrested person and a witness in a criminal investigation.

This is based on the Federal Court decision in Suruhanjaya Pencegahan Rasuah Malaysia and Ors v Latheefa Beebi Koya and Anor [2017] where Federal Court judge Abu Samah Nordin, who delivered the judgment explained Article 5 of the Federal Constitution as follows:

“Article 5(2) of the Constitution speaks of the right of a person who is being unlawfully detained to make a complaint to the High Court. This is a provision where a person claiming to be unlawfully detained, ordinarily applies for a writ of habeas corpus.

“Article 5(3) speaks of the right of an arrested person to consult and to be defended by a legal practitioner of his choice. The (complainant) is a witness and not a suspect or an arrested person or a person ‘unlawfully detained’.”

So, Article 5(2) or 5(3) of the Federal Constitution does not confer any constitutional right on a person to be represented by counsel during the recording of his or her statement as a witness.

So, was Wira a witness or suspect?

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