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LETTER | Acts under pretended authority are disallowed in law

LETTER | The police have their investigating powers pursuant to the Criminal Procedure Code.

According to Section 57 of the Securities Industry (Central Depositories) Act 1991, the Securities Commission (SC) has the power to investigate where it has reason to suspect that a person has committed an offence under the Act, or is about to commit an offence under the Act.

Under Section 29 of the MACC Act, an officer of the MACC has the power to begin an investigation when, following a report being made relating to a commission of an offence, he or she suspects that an offence has been committed.

Under Section 590 of the new Companies Act 2016, the investigation of a company’s affairs is at the direction of the Domestic Trade, Co-operatives and Consumerism Minister, either by his or her own motion or on the application of members or debenture holders of the company.

Section 16 of the Commission of Enquiry Act 1950 states:

16. (1) The Commissioners may require the Public Prosecutor to cause any matter relevant to the enquiry to be investigated.

(2) (a) Any person appointed by the Public Prosecutor to investigate any such matter shall, for the purposes of the investigations, have all the powers in relation to police investigations given to police officers in any seizable case under Chapter XIII of the Criminal Procedure Code [Act 593], and may, when authorized in writing by the Public Prosecutor, search any premises and take possession of any articles or documents as specified in the authority.

In an enquiry, the royal commission of inquiry (RCI) may require the public prosecutor to cause the police to investigate certain matters.

This, in turn, bring us to a peculiar entity called “Pasukan Petugas Khas Siasatan ke atas dakwaan-dakwaan dalam buku bertajuk “My Story: Justice In the Wilderness” Tulisan YBhg Tan Sri Tommy Thomas Bekas Peguam Negara”.

In the “Laporan Pasukan Petugas Khas Siasatan ke atas dakwaan-dakwaan dalam buku bertajuk “My Story: Justice In the Wilderness” Tulisan YBhg Tan Sri Tommy Thomas Bekas Peguam Negara”, the foreword by the then-Minister in the Prime Minister’s Department (Parliament and Law) reveals that the cabinet had agreed to establish a “Pasukan Petugas Khas” (special task force) to investigate the allegations in the book written by the former attorney-general Tommy Thomas.

Former attorney-general Tommy Thomas

The foreword also reveals that the special task force will carefully examine and investigate various allegations in the said book.

Further, the forward by its chairperson reveals that the task force was not deterred from conducting a thorough, independent and comprehensive investigation of the allegations identified in the book.

The chairperson went on to thank, amongst others, the Attorney-General’s Chambers and police.

In the executive summary of the report, it was stated that the course of investigations began on Dec 23, 2021, until Aug 22, 2022.

In fact, the title of the report itself discloses that it is a “Laporan Siasatan” (report of an investigation).

This special task force that was formed by the previous government was, for all intents and purposes, an investigative task force.

From where did the task force derive its powers from? The previous prime minister? The previous cabinet?

I was reminded by a scholar that from the rule of law view, investigative powers should derive from the law and not from executive authorisation.

This special task force had no source of investigative powers pursuant to any written law, unlike other bodies or agencies or an RCI that we saw at the outset.

The very existence of this task force is questionable.

In the Indian Supreme Court case of Kharak Singh vs The State Of U. P. & Others 1964 SCR (1) 332, it was held:

“We entirely agree that if the regulations had any statutory basis and were a "law' within Art. 13 (3), the consideration mentioned might have an overwhelming and even decisive weight in establishing that the classification was rational and that the restrictions were reasonable and designed to preserve public order by suitable preventive action.

“But not being any such ‘law’, these considerations are out of place and their constitutional validity has to be judged on the same basis as if they were applied against everyone including respectable and law-abiding citizens not being or even suspected of being, potential dangers to public order. The sole question for determination therefore is whether ‘surveillance’ under the impugned Ch. XX of the U.P. Police Regulations constitutes an infringement of any of a citizen's fundamental rights guaranteed by Part III of the Constitution.”

Further held:

“The fact that an act by the State executive or by a State functionary acting under a pretended authority gives rise to an action at common law or even under a statute and that the injured citizen or person may have redress in the ordinary courts is wholly immaterial and, we would add, irrelevant for considering whether such action is an invasion of a fundamental right.

“An act of the State executive infringes a guaranteed liberty only when it is not authorised by a valid law or by any law as in this case, and every such illegal act would obviously give rise to a cause of action-civil or criminal at the instance of the injured person for redress.”

If the formation of the special task force has no statutory basis or constitutional validity, acts of this team are in fact acts under a pretended authority because it is not authorised by any law, and therefore all such acts are illegal acts.

To conclude, if the government is unable to disclose the source of investigative powers of this special task force, its very establishment is illegal.

I humbly stand corrected.

The author is a member of the legal fraternity.

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

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