KUALA LUMPUR (May 30): The High Court (Appellate and Special Power division) on Tuesday (May 30) gave Parti Pribumi Bersatu Malaysia leave for judicial review of the Malaysian Anti-Corruption Commission (MACC)’s action in freezing two bank accounts belonging to the political party.

However, judge Datuk Ahmad Kamal Md Shahid ruled that the court has no power to grant the party interim relief seeking the release of funds from the party accounts for its operational expenses, which is the subject matter of the criminal trial.

Ahmad Kamal ruled that Bersatu’s application for judicial review was not frivolous and vexatious and was amenable to review.

“Hence this court grants leave for judicial review and fixes June 21 for case management,” the judge said.

In granting leave, Ahmad Kamal said that even the power of the Attorney General under Article 145(3) of the Federal Constitution is amenable to judicial review in appropriate circumstances.

“There is no reason why a freezing order imposed by the Malaysian Anti-Corruption Commission under Section 44 and/or Section 50 of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act (AMLA), cannot be subjected to judicial review in appropriate circumstances.

“Therefore, this court is of the view that the legality of an impugned freezing order is not frivolous or vexatious. There is a triable issue that warrants hearing at the substantive motion of the application,” the judge said.

On March 8, Tan Sri Muhyiddin Yassin, as Bersatu president, filed the application for judicial review, along with Bersatu’s executive secretary Captain (Rtd) Datuk Muhammad Suhaimi Yahya.

They named the MACC and 18 of its officers, including chief commissioner Tan Sri Azam Baki, as well as the Immigration Department and the Malaysian Government, as respondents.

In their application, the party requested a declaration from the court that the MACC should not follow the directives of the leaders of the ruling party who are in government, or the directives of the prime minister and/or deputy prime minister, by enlisting MACC officers to initiate investigation against Bersatu, which it (the party) claimed had caused the issuance of the freeze order under Section 44 of the AMLA.

The Bersatu president is also seeking an interim order that will allow him to move freely and make trips abroad without restrictions.

According to court documents sighted by The Edge, Muhyiddin said he is scheduled  on April 14 and 15 to go to London, where he will give the keynote speech at the 1st Annual Conference of the Global Council for Political Renewal (GCPR).

The judge said in light of the application, the court ruled that the matter of a travel ban was not academic, as there are triable issues.

In the application before the court, there was no reason given by the respondents for the imposition of the travel ban on Muhyiddin, Ahmad Kamal said.

He said that prima facie, there is no positive provision of law setting out clearly and unequivocally that any of the respondents, especially the Immigration Department, has the right to impose a travel ban on Muhyiddin.

“Subsequent upliftment of the travel ban (two days after the conference) is not academic per se, as the court has to look into the travel ban as a whole and not in isolation. Besides, the travel ban also has an element of public interest to demand the court to look into the matter substantively, as Muhyiddin being a previous PM, has a certain standing in the country.

“In short, the issue of the legality of the impugned travel ban is not frivolous or vexatious in the instant application. It touches upon fundamental liberties enshrined in the Constitution, which also warrants substantive hearing by this court,” the judge said.

The former prime minister and Bersatu president was charged on March 10 with four counts of abuse of power, for using his position as then PM to secure gratification amounting to RM232.5 million from corporate entities, which the prosecution said was funnelled directly to Bersatu.

He also faces two charges of money laundering involving RM195 million, which his party received. Muhyiddin claimed trial.

In granting the judicial review, Ahmad Kamal denied the interim relief seeking the release of RM1 million a month to meet operational expenses by the party, to pay staff salaries and debtors using funds from the frozen accounts

The judge reasoned that the power of the court in granting the remedy is very wide but in the granting of remedy, discretionary power must be exercised judicially and judiciously, according to the facts and circumstances of a particular case.

He said the invitation for the court to exercise its discretion to grant interim orders or interim reliefs must be backed by cogent and compelling support, and the court has to consider whether such granting of interim orders or interim reliefs would amount to an indirect or collateral challenge on the enforcement agency’s power.

Ahmad Kamal said the threshold level at the leave stage is low and the court only needs to be satisfied that the applicants have a prima facie case, that the case is not frivolous or vexatious and there is some substance in the grounds supporting the application, without going into the merit of the case.

The court noted that the MACC had dismissed the variation order for the frozen accounts but did not give reasons for doing so, and this can only be determined when the merits of the matter are heard.

“At this stage, the granting of such interim orders or interim reliefs would amount to interference in the power of the MACC in exercising its power to make a variation order. Moreover, if the money is released to the party, it will affect all the monies in the bank account(s), which is the subject matter of the criminal charges.

“The criminal cases pertaining to the matter have yet to start, and it will take at least a year or two for the cases to be finally decided by the High Court. Therefore, it is important to maintain the accounts’ freezing to ensure that justice is served to all parties, and not to interfere with the criminal trials. As such, the granting of the interim order ought to be refused,” the court said.

Lawyers Rosli Dahlan and Chetan Jethwani appeared for Bersatu, while senior federal counsel Ahmad Hanir Hambaly and federal counsel Mohd Sallehuddin Mohd Ali appeared for the MACC and Immigration Department.

Following the decision, Rosli informed the court that the party had filed another judicial review to challenge the seizure order made by the MACC under Section 50 of the AMLA on April 12, and hopes that Ahmad Kamal would also preside over the second judicial review application.

However, Ahmad Kamal said that a judge has no power to determine which case he or she can preside over, as it would amount to disruption in the administration of justice, and the “shopping” of judges.

Read also:
Bersatu files second judicial review application against seizure of accounts after earlier being frozen
AGC objects to Bersatu’s bid to challenge the freeze order in accounts, and says they are linked to Muhyiddin’s criminal charges 
Bersatu files judicial review to unfreeze accounts, alleging abuse of process