The issuance of investigative notices to lawyers representing a client constitutes intimidation and is void due to infringement of legal rights and obligations.

[1] Both the applicants are advocates and solicitors of the High Court of Malaya. They acted for one Datuk Shamsubahrin bin Ismail (their client) who had been summoned by the 1st respondent to give statement to assist in investigation of an offence under s 16(b)(B) of the Malaysian Anti-Corruption Commission Act 2009 (Act 694) against one Datuk Seri Dr Mohamad Salleh bin Ismail, the Executive Director of National Feedlot Corporation (NFC). The order to give statement was pursuant to s 30 of Act 694.

[2] The applicants had on 19 March 2012, accompanied their client to the 1st respondent's premises and insisted to be present throughout the recording of the statement, on the instruction of their client. According to the affidavit in reply of the respondents, as the situation then was tense and with the presence of reporters, the applicants were allowed to accompany their client during statement taking but the applicants were informed by the 1st respondent of the possibility that their statements themselves would also be recorded.

[3] The applicants, when approached, had refused to give any statement to the 1st respondent. Hence, the 1st respondent through the 3rd respondent, had on the same day, issued notices under s 30(1)(a) of Act 694 requiring the applicant to be present at the 1st respondent's premises on 23 March 2012 and to give statements, just like their client. They were notified that failure to comply to the said notices may subject them to the punishment of a fine or imprisonment or both.

[4] Not happy with the respondents' action, the applicants now seek for the following reliefs:

a. An order of certiorari to quash the notices (hereafter referred as "the said notices") under s 30(1)(a) Act 694 dated 19 March 2012;

b. Declaration that Notices under s 30(1)(a) Act 694 dated 19 March 2012 are ultra vires and unlawful;

c. Declaration that the 1st respondent does not have the power to take statements or testimony of lawyers who appear with their client who has been summoned to give statements to the 1st respondent;

d. General damages and exemplary damages; and

e. Such further reliefs that the Court deems fit.

Issue

[5] The main issue here is whether the issuance of the said notices is a decision which entitled the applicants to make this application.

Applicants' Case

[6] The learned counsel for the applicants submits that in the case of Council of Civil Service Unions v. Minister For Civil Service [1984] 1 AC 374, the House of Lords held that for a decision to be susceptible to the Court's reviewing powers, there must first be a decision by a decision maker or a refusal by him to make a decision, and, that decision must affect the aggrieved party by either altering his rights or obligations or depriving him of the benefits which he has been permitted to enjoy.

[7] He also quotes the case of R v. Sloan [1990] 1 NZLR 474 , wherein Justice Hardie Boys said:

"Secondly, it is not every decision made under statutory authority that is subject to review. A decision must go beyond what is merely administrative or procedural or of a function rather than a power. Quite plainly, the conclusions reached by the inspectors here are of this kind and so are not reviewable "

[8] The learned counsel for the applicants further submits that the 3rd respondent's decision to issue such notices goes beyond the administrative or procedural or the exercise of a function of the 1st respondent and is a clear violation of art 5 of the Federal Constitution on the right to legal counsel.

Respondents' Case

[9] The learned Senior Federal Counsel appearing for the respondents on the other hand submits that there was no decision here as the matter was still at investigation stage. He quotes the case o