Counsel acting for corporate lawyer E Sreesanthan are seeking the High Court ruling on several questions of law, including on Section 128 and 134 of the Securities Commission Act 1993, which they contend as unconstitutional.

Lead counsel, Cyrus Das, submitted before justice Kamardin Hashim that the two sections infringed the safeguard of a fair criminal trial guaranteed under Articles 5(1) and 8(1) of the Federal Constitution.

He contended that Section 128 of the Act provided authorities entry into premises without a search warrant; power exercisable by any investigation officer of the Securities Commission (SC); power to search and inspect; power to seize any documents, including passports and power to compel production of documents.

Cyrus said the section also allowed the SC to prosecute anyone who declined to cooperate with its investigating officer with fine of RM1 million and imprisonment of up to five years.

On Section 134 of the Act, he submitted that it revoked the right to remain silent.

"Section 134 contains none of the safeguards as provided by the CPC (Criminal Procedure Code) on the recording of the statements from a potentially accused person where a caution has to be administered," argued Cyrus.

Besides that, he said, any statement made or recorded was admissible in court whether voluntary or not.

Cyrus submitted further that the section not only denied right against self-incrimination, but the accused person's refusal to answer or cooperate with investigation would be subjected with criminal prosecution, and on conviction could be fined up to RM1 million or imprisonment up to five years.

Meanwhile, co-counsel Jerald Gomez submitted that the newly amended Section 172A and 172B of the CPC deprived the accused of his right to a fair trial in an adversarial system.

He submitted that requirement for the accused person to participate at pre-trial conference as a "subtle erosion" of the right of the accused to effectively cross examine and test the veracity and credibility of the witnesses and evidence tendered by the prosecution.

On July 20 last year, Sreesanthan, 53, a former independent non-executive director of Sime Darby Bhd, claimed trial to seven counts of insider trading, involving 625,000 shares in Sime Darby Bhd, Maxis Communications Bhd, UEM World Bhd and VADS Bhd.

He allegedly used the information on the acquisition, privatisation and corporate restructuring exercises of the said companies at his disposal between 2006 and 2008 to acquire the shares.

All the offences were allegedly committed at Bursa Malaysia Securities Bhd in Bukit Kewangan here between Oct 9, 2006, and Sept 18, 2008.

Sreesanthan faces a minimum fine of RM1 million and up to 10 years in prison for each offence under the Securities Industry Act 1983 and Capital Markets and Services Act 2007, upon conviction.

- Bernama