Ex-Yayasan Bank Rakyat chairman faces 'high legal hurdle' in bid to block MACC asset notice

KUALA LUMPUR: Former Yayasan Bank Rakyat (YBR) chairman Datuk Seri Nazir Hussin Akhtar Hussin's bid to block an asset declaration notice from the Malaysian Anti-Corruption Commission (MACC) faces a high legal hurdle.

Senior lawyers have questioned the prospects of his injunction application, filed amid an investigation into suspected misappropriation and abuse of position involving a RM10 million YBR investment.

Bar Council Criminal Law Committee chairman Vivekananda Sukumaran said courts generally decline to interfere with MACC's investigative powers, while legislation imposed further restrictions on injunctions against public authorities.

"The court can hear such an application, but the bar is very high, and our courts have consistently declined to interfere with MACC's investigative steps," he told the New Straits Times.

Nazir and his elder brother, Datuk Mubarak Hussain, filed an originating summons at the Kuala Lumpur High Court on Tuesday, seeking a declaration that Section 36 of the MACC Act 2009 is unconstitutional.

They also want an injunction preventing MACC from issuing or serving asset declaration notices against them. Case management is scheduled for today.

Courts reluctant to interfere

Vivekananda said Section 36 empowers senior MACC officers, acting on reasonable grounds arising from investigations, to demand declarations covering property, income and how assets were acquired.

He cited a Federal Court ruling involving lawyer Latheefa Koya, which established limits on judicial review of criminal investigations.

The Court of Appeal applied the same principle in May 2024 when it dismissed a challenge by the late former finance minister Tun Daim Zainuddin and his family against MACC's investigation and related notices.

Vivekananda said the Specific Relief Act 1950 also restricted injunctions interfering with government departments carrying out their public duties.

"Going to court is a legitimate right, but filing an application does not suspend the law. A pending application is not a court order," he said.

However, he said that MACC's actions could still be challenged where there was evidence of bad faith.

"MACC answers to the courts, but bad faith must be proved with evidence, and the door is narrow," he said.

Nazir has alleged the proposed asset declaration notice was issued in bad faith and infringed constitutional protections against self-incrimination.

Criminal lawyer Datuk Dr N. Sivananthan also questioned the attempt to restrain MACC from exercising its statutory powers.

Sivananthan said asset declarations allowed investigators to determine whether an individual's wealth was consistent with their known income.

[[nid:1558552]]

"They don't go and ask every Tom, Dick and Harry to declare. This person is already under investigation. As part of that investigation, they ask him to declare his assets.

"But you are now asking the court to prevent them from asking you to declare. I really don't see how that is going to work," he said.

Sivananthan said individuals who needed time to retrieve financial records could seek extensions from MACC.

RM10 million investment under scrutiny

The dispute stems from MACC's investigation into a RM10 million investment made by YBR during Nazir's chairmanship.

YBR, an educational foundation established by Bank Rakyat, receives funding from the cooperative bank and contributions linked to its members' dividends to support educational initiatives.

Its audited 2022 annual report shows the foundation signed an agreement on Nov 16, 2020, to subscribe for RM10 million in redeemable preference shares in Precious Amber International Berhad (PAIB).

The report records redemption of the investment on Dec 10 and 15, 2022.

PAIB subsequently faced regulatory action from the Securities Commission (SC), which issued a cease-and-desist directive on March 4 last year, after finding the company had held itself out as conducting fund management activities without the required licence.

In December, the SC described statements made by PAIB to investors as inaccurate and misleading and confirmed the company had been placed on its Investor Alert List.

The regulatory action came years after YBR's investment and does not establish wrongdoing in the original transaction.

Nazir has denied wrongdoing, maintaining that YBR recovered its RM10 million investment and earned RM1.85 million in returns.

He also disputed allegations that Mubarak owned PAIB when YBR invested, saying his brother acquired an interest several months later.

During the investigation, MACC reportedly seized 15 luxury cars worth about RM31 million, 12 high-powered motorcycles valued at RM5 million and other assets.

The NST has reached out to the MACC for further updates on the case.

Refusal does not automatically mean offence

MACC said Nazir refused to accept an asset declaration notice on Oct 14, citing his pending court application.

[[nid:1558551]]

However, Malaysia Corruption Watch (MCW) president Jais Abdul Karim said refusing to accept a notice, challenging its legality and wilfully failing to comply were separate matters.

"These three circumstances cannot be arbitrarily treated as the same," he said.

Jais said the validity and proper service of a notice must be established before conclusions about non-compliance could be drawn.

Under Section 36(2) of the MACC Act, wilful failure to comply with a valid notice carries imprisonment of up to five years and a fine of up to RM100,000 upon conviction.