Suruhanjaya Pencegahan Rasuah Malaysia

On the court record

Illustrates how the courts supervise the exercise of anti-corruption investigative powers, entertain claims in tort for their abuse, and review the notices and steps taken in the course of an investigation.

The Suruhanjaya Pencegahan Rasuah Malaysia (the Malaysian Anti-Corruption Commission) appears in this corpus in roles including respondent, defendant and appellant, in litigation testing the exercise of its investigative and enforcement powers and the liability that may follow from them. A constitutional dimension appears through a reference to the Federal Court under sections 84 and 85 of the Courts of Judicature Act 1964, by which a question of constitutional validity arising in proceedings is referred for authoritative determination. A distinct and significant strand concerns civil liability for the conduct of an investigation: claims founded on the tort of abuse of process, or of malicious prosecution, brought against officers of the Commission and the Government, in which the courts examine whether an enforcement or prosecutorial step was taken without reasonable cause and with an improper purpose, and the elements that such a tort requires. The corpus also includes judicial review of notices issued by the Commission under its statutory powers — for example notices under section 30(1) of the governing Act requiring the production of information or attendance — and applications to strike out related pleadings under Order 18 rule 19 of the Rules of Court 2012. Because the Commission wields coercive investigative powers, the litigation tests the boundary between their legitimate exercise and the actionable misuse of process. The matters are decided across the High Court, the Court of Appeal and the Federal Court. Collectively the decisions in which the Anti-Corruption Commission is a party illustrate how the courts supervise the exercise of anti-corruption investigative powers, entertain claims in tort for their abuse, and review the notices and steps taken in the course of an investigation. Several of the reported matters also concern the elements a claimant must establish to found the tort of abuse of process or malicious prosecution against an enforcement body, and the striking out of such a claim where those elements are not made out. Across these decisions the courts mark the boundary between the legitimate exercise of coercive anti-corruption powers and their actionable misuse.