MACC independence under scrutiny after businessman’s dramatic arrest

Malaysians Against Death Penalty and Torture (Madpet) is appalled by the response of Malaysian Anti-Corruption Commission (MACC) to the highlighting of alleged wrongdoings or crimes and the manner in which businessperson and whistleblower Albert Tei Jiann Cheing was reportedly arrested by the MACC.

He [Albert Tei] was arrested after “masked officers” forced their way into his home…. Tei was later escorted out of the house in handcuffs and surrounded by armed personnel wearing balaclavas…

“I was denied entry and prevented from meeting my client despite identifying myself as counsel.

“No officers had identified themselves…” he [his lawyer Zaid Malek] said in a statement on Friday [28 November]. “I do not even know for sure if they are police or MACC officers”… — The Star, 28 November

Businessperson Albert Tei’s wife alleged that MACC officers were heavy-handed when raiding her home today, with the officers pointing a gun at the former before handcuffing him…

“Soon, he was instructed to lie on the floor, and a few officers handcuffed him, with one pointing a gun at Tei from a distance,” Lee told Malaysiakini…

Subsequently, she claimed that the officers confiscated their mobile phones, including the children’s, purportedly to delete videos and images from the devices. – Malaysiakini, 28 November

In response to Zaid asking if he was being arrested, Tei said, “They broke into my house, broke down my door, (pointed) six pistols at my head. “Six pistols at my head, as if I were a terrorist! That is the consequence of exposing leaders at the top.”…

“Not a single MACC or police officer showed me their authority card.

“I asked them repeatedly where (Tei) was being taken to, and not a single officer informed me (of the details),” he stated. – Malaysiakini, 28 November

Lawyers for Albert Tei have condemned the Malaysian Anti-Corruption Commission (MACC) after its officers removed a CCTV decoder and deleted the contents of mobile phones belonging to the businessman’s family members, shortly before masked gunmen from the agency took him away to an undisclosed location today. – MalaysiaNow, 28 November

The manner of arrest raises questions about legality, and also whether it was too ‘extreme’ possibly with sending the message to the public at large of what may happen to any who dares raise allegations of wrongdoing about the prime minister, the MACC chief or the MACC. Was there any similar method used in the past when the MACC arrested a suspect?

Failure to identify

The manner in which the arrest was carried out, by these unidentified officers of the MACC wearing balaclava and using an unmarked vehicle is a blatant violation of the law and is something law enforcement officers must never do. The law is most clear that MACC officers must identify themselves.

Section 8 of the Malaysian Anti-Corruption Commission Act 2009:

Every officer and junior officer of the Commission when acting under this Act shall, on demand, declare his office and produce to the person against whom he is acting or from whom he seeks any information the authority card issued to him under this Act.

This should apply to the lawyers of the person being arrested too.

All police and law enforcement officers must carry out their official duties transparently – meaning, they must wear their official uniforms and identify themselves (name, rank and show their authority card). Hiding their identity raises serious doubts over whether they are really police or law enforcement officers or some ‘gangsters’ pretending to be law enforcement.

The inability to identify clearly the officer(s) involved is also prejudicial to victims who will not even be able to identify in court the ‘officer’ who may have broken the law or violated their rights, including torture or worse.

This is also in contradiction to the policy of installing CCTVs and body-worn cameras on law enforcement officers, to ensure that law enforcement officers strictly comply with the law and do not ‘bend’ or violate the law.

If the MACC did not later acknowledge the arrest, we would still be at a loss over who this unidentifiable ‘gang’ was that arrested Tei. And if Tei had disappeared, we would be faced with yet another case of enforced disappearance.

No violence if suspect submits

When the police or, in this case, MACC officers come to arrest a person, there should be no use of force if the person who is to be arrested agrees to be arrested.

And, if the person who is to be arrested resists, then only reasonable force should be used. The use of guns when a person is not even armed with a stick may be unreasonable.

Section 15 of the Criminal Procedure Code is most clear:

(1) In making an arrest, the police officer or other person making the same shall actually touch or confine the body of the person to be arrested unless there is a submission to the custody by word or action.

(2) If such person forcibly resists the endeavour to arrest him or attempts to evade the arrest, such officer or other person may use all means necessary to effect the arrest…

In the case of Tei, a recognised ‘whistleblower’, a mere summons to come to the MACC for investigation would reasonably suffice. Was there really any need for such a raid, the use of balaclavas to prevent identification, the refusal to show their authority cards, the alleged use of guns and the non-provision of cooperation or information to the lawyers of the suspect?

It becomes most difficult now for even witnesses, including the lawyers, to clearly identify any of these alleged officers if they broke the law.

Access to lawyers

Article 5(3) of the Federal Constitution states:

Where a person is arrested, he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.

In this case, the lawyer was present when he was being arrested and when the police were searching the premises. Thus, the police needed to cooperate with the lawyer, explaining the grounds of arrest, showing the arrest warrant and search warrant, and providing the lawyer a copy of all items that were taken by the MACC officers.

Upon request for information by the lawyer about where the suspect is being taken, MACC officers must inform the lawyers. After all, it is established in Malaysia that the arrestee or suspect should never be questioned or asked to sign any document without first being able to consult with the legal practitioner of his choice. In the case of Tei, he has lawyers, among them Zaid Malek and Mahajoth Singh.

The purpose of a search and seizure is to obtain and preserve evidence not destroy evidence, and it is crucial that the lawyer, who was reported to be present at the scene, should have not just been provided with a full list of evidence found and taken from Tei, but also be allowed to confirm the evidence actually seized.

Protect, not destroy, evidence

Madpet is extremely concerned about the allegation that phones of the wife and children were seized at the scene, purportedly to delete videos and images from the devices, and so too were CCTV decoders. This is material evidence of possible ‘wrongdoings’ of MACC officers during the arrest and seizure.

 …the MACC has denied claims of misconduct during the arrest of businessman Albert Tei on Friday, including allegations that officers pointed a gun at him, and have also made a police report to investigate what the MACC called false claims and stop the spread of inaccurate information. – Edge, 28 November

What is the basis of the MACC’s denial of misconduct? Were there any investigations? Were CCTV and body-worn camera recordings scrutinised? Was the one who highlighted alleged misconduct even called in to consider his or her evidence?

From media reports, it seems that the MACC or its chief Azam Baki’s conclusions that the MACC did no wrong may be premature, and possibly biased by the belief that its own officers will do no wrong.

Such allegations must be independently investigated, not by the MACC, which is the alleged ‘perpetrator’ but maybe by the Malaysian human rights commission, Suhakam.

Madpet also calls for the MACC to be listed now as one of the agencies under the supervision of the Enforcement Agency Integrity Commission (EAIC).

Remove PM’s role

The prime minister is empowered to choose the MACC chief commissioner, as stated in Section 5(1) of the Malaysian Anti-Corruption Commission Act 2009:

…the Yang di-Pertuan Agong shall, on the advice of the Prime Minister, appoint a Chief Commissioner of the Malaysian Anti-Corruption Commission for such period and on such terms and conditions as may be specified in the instrument of appointment…

During the tenure of Anwar Ibrahim as prime minister, Azam Baki is now enjoying a third extension of tenure as the MACC chief commissioner. His term will end on 12 May 2026, when Azam may be reappointed again.

Has this fact affected the independence and professionalism of the MACC chief, more so when the allegations implicate Prime Minister Anwar himself, directly or indirectly? Would the MACC chief be concerned about the potential renewal of his contract as MACC chief when there is an allegation implicating the prime minister or his “Madani” (trustworthy) government?

In this case, the prime minister has been directly implicated, as the allegations are not about just any politician or minister, but the PM’s own political secretary.

Further, in this case, there was also allegedly a video where allegations that “it was Shamsul and Anwar’s idea that Tei secretly record his conversations with various Sabah politicians, adding that Shamsul had also spoken to Azam about the plan”. – Malaysia Now, 28 November.

This was in relation to earlier released:

explosive videos implicating Sabah Chief Minister and GRS chairman Hajiji Noor and 14 ruling politicians in corrupt practices – revealed that he had spent almost RM630,000 on Anwar’s political secretary, Shamsul Iskandar Mohd Akin, in the hope that the latter would help him negotiate with Hajiji to recover the money he paid to several GRS politicians.

This is a serious matter, as it suggests that Tei’s action of gathering evidence on ‘corrupt’ Sabah politicians was allegedly with the ‘knowledge’ or ‘blessings’ of Anwar and the MACC chief. Was this legal or illegal ‘entrapment’ to weed out the corrupt, or was it for some other purpose? Is Anwar being serious about weeding out corruption at all levels?

Protection, not retaliation

Madpet believes that whistleblowers, human rights defenders and people who want to expose wrongdoings, corruption, abuse of power, injustices, violation of rights and crimes need to be encouraged and protected from any retaliatory actions.

However, the MACC’s recent action of making a police report on the making of false statements or allegations in this case – even before the allegations are first properly investigated has a tendency of deterring whistleblowers from exposing alleged wrongdoings especially of the prime minister or the MACC itself.

It was just reported that ‘no further action’ will be taken on Bloomberg, which in September 2024, published a report, quoting sources, that implicated Prime Minister Anwar and MACC chief Azam in:

“concerted abuse of investigative powers” concerning supposedly targeted probes by the graftbusters… Bloomberg’s report also claimed that Anwar had ordered Azam not to investigate the prime minister’s former aide, Farhash Wafa Salvador Rizal Mubarak, over the latter’s purchase of shares in HeiTech Padu Bhd. – Malaysiakini, 5 November

Protect MACC’s independence

Madpet believes that there is a need for reforms to safeguard the independence of the MACC and all law enforcement commissions and agencies, whereby the prime minister’s role in appointments must be removed.

Further, there is a need for security of tenure: appointments shall be for a period that ends only with retirement age, and there should be no possibility of extension of tenure. This is to safeguard the independence of law enforcement and the administration of criminal justice in Malaysia.

At present, there is no security of tenure, as the law just says “for such period and on such terms and conditions”, which is vague. This can also give the power to the prime minister to be able to remove the MACC chief anytime, possibly even when the MACC starts to investigate the prime minister himself.

Madpet urges for an independent investigation to be made to verify how the arrest was made. Did the MACC officers wear balaclavas? Did they fail to “declare his office and produce to the person against whom he is acting or from whom he seeks any information the authority card issued to him under this Act” and other alleged wrongdoings?

It is odd that no media report even provides the names of the arresting officers, or the investigating officers. It is hoped that the arresting officers had body-worn cameras and CCTVs on their vehicles, which would be evidence to prove that it was all done according to the law.

The public will not be all right with the idea of the MACC itself investigating allegations of wrongdoings of the MACC or its officers. The MACC, at present, is not under the EAIC.

Madpet thus calls for the MACC to be listed now as one of the agencies under the supervision of the EAIC, thus allowing complaints about the MACC or its officers to be lodged at the EAIC. The EAIC can thus independently investigate or inquire into such complaints and make a determination.

The allegations highlighted by Tei, and even Bloomberg before, seem to have only resulted in criminal investigations against the whistleblowers, and it seems that no investigations were done on the alleged wrongdoings that implicated the prime minister, MACC chief Azam, the MACC or its officers.

Prime Minister Anwar, who was implicated in Tei’s allegations, has yet to be called in for investigations.

Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture.

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