KUALA LUMPUR: The Malaysian Anti-Corruption Commission (MACC) has made a preliminary objection against Toh Puan Na'imah Khalid's application to challenge the validity of the charge against her under the MACC Act.
In an affidavit-in-reply affirmed by MACC deputy public prosecutor Maziah Mohaide, she said there was no need for the Sessions Court to refer the constitutional questions which Na'imah, the wife of former finance minister Tun Daim Zainuddin, had raised to the High Court.
"Na'imah's application has no merit because the questions raised are not constitutional issues or breaches any matters in the Federal Constitution.
"The right for one to be protected from the privilege against self incrimination is not an absolute right under the law and it is not a right guaranteed under the constitution," she said.
Na'imah,67, had filed a reference application for the High Court to determine the validity of the Section 36(2) of the MACC Act against her.
Through a notice of motion filed on Feb 29, she had asked the Sessions Court to make an order to refer to the High Court under Section 30(1) of the Courts of Judicature Act 1964 on several questions regarding the effect of the provisions of the Federal Constitution.
She had asked the High Court to rule whether Section 30(5) and Section 36(2) of the MACC Act 2009 infringes her right against self- incrimination and her right to not be compelled to produce incriminating evidence to be used in a proceeding against a person.
She sought to know the court's stance on whether the section invoked against her infringes her right to a fair trial under articles 5 and 8 of the Federal Constitution and is therefore unconstitutional and void.
Maziah said Section 36 provides MACC officers powers to obtain information and Section 36(2) is also a non obstante provision.
"It does not breach Article 5 of the constitution as when Na'imah was given the notice under Section 36, she had not been or yet to be arrested. Therefore, the issue of a violation of Article 5 before a trial is premature.
"Article 8 was also not violated as Section 36 is not only applicable to Na'imah but anyone who is served a notice under the provision, where the same procedure applies without discrimination and all are treated the same.
"Na'imah was treated fairly in the eyes of the law and there was no discrimination against her. MACC officers had treated her the same as anyone being investigated under the MACC Act," she said.
