MAY 9 — In the case of Suruhanjaya Pencegahan Rasuah Malaysia & Ors v Latheefa Beebi Koya & Anor [2017], the Federal Court was asked to decide on a question of law – that is, whether a criminal investigative process is amenable to judicial review.
Federal Court Judge Abu Samah Nordin, who delivered the judgment of the Federal Court, said:
“The weight of authorities tends to support the view that the actions or decisions of a public authority in exercise of its legitimate powers at the investigative stage are not amenable to judicial review.“
For example, in City Growth Sdn Bhd & Anor v The Government of Malaysia [2006], the applicants (City Growth Sdn Bhd & Anor) applied for leave for an order of certiorari to quash the order issued by the deputy public prosecutor (DPP) under section 50(1) of Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001.
The High Court dismissed the leave application, holding that the order of the DPP was not amenable to judicial review. If all decisions and actions of public authority of this nature were amenable to review, the government machinery might not be able to function smoothly as the investigation process of all enforcement agencies would be open to constant judicial review.
It was also held by the Federal Court in Empayar Canggih Sdn Bhd v Ketua Pengarah Bahagian Penguatkuasa Kementerian Perdagangan Dalam Negeri dan Hal Ehwal Pengguna Malaysia & Anor [2014] that an exercise of power in the course of a criminal investigation was not open to judicial review. To hold otherwise would be exposing the criminal investigative process of all law enforcement agencies in the country to constant judicial review which surely could not have been the intention of Parliament.
It is therefore not surprising that the Court of Appeal has rejected the appeal by former finance minister Daim Zainuddin and his family to overturn a High Court’s dismissal of their application to obtain leave for a judicial review challenging the Malaysian Anti-Corruption Commission’s (MACC) investigation into their financial affairs.
The three-judge panel led by Court of Appeal judge Azizah Nawawi made the unanimous decision after taking around an hour to deliberate following arguments from both the prosecution and defence.
The Court is bound by the decisions of the Federal Court.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
