KUALA LUMPUR (March 4): The High Court here has quashed an application by former finance minister Tun Daim Zainuddin, his wife Toh Puan Na’imah Abdul Khalid, and their children for a judicial review of the Malaysian Anti-Corruption Commission's (MACC) investigation into their finances, which had led to the freezing of various accounts they own and the seizure of Ilham Tower.
Judge Datuk Wan Ahmad Farid Wan Salleh ruled on Monday that the applicants had failed to establish that the investigation carried out by the MACC was mala fide or done in bad faith as they claimed.
“In short, the threshold [for mala fide] is not crossed, since they (Daim and others) were not able to establish mala fide. The judicial review must fail,” the judge said, adding that Daim and his family had to prove or establish the existence of mala fide to challenge the criminal investigation.
“Mere suspicion of mala fide or even allegations of intimidation are insufficient. On the facts affirmed, the applicants (Daim and family) have failed to establish mala fide on the part of the investigating officers of the MACC,” he said.
The judge also said that “as a general rule”, the exercise of power by investigative authorities in the course of a criminal investigation is not up to a judicial review in a civil court, citing Order 53 of the Rules of Court 2012 that deals with judicial reviews.
Daim, in the judicial review application, also claimed that the investigation against him was politically motivated by Prime Minister Datuk Seri Anwar Ibrahim, who he said views him as a 'political foe'.
“My view is that allegations that the investigation is politically motivated, or that Datuk Seri Anwar Ibrahim considers him (Daim) a political foe, should be taken up in the criminal trial,” the judge said, adding that this is a judicial review, and parties must be careful in collateral challenges.
A collateral challenge is a challenge of the validity of lawfulness of an act that is not directly in issue in the proceedings.
Wan Ahmad also addressed Daim and his wife’s recent application to amend their judicial review application to include quashing the criminal charges against them for not abiding by the MACC's notice to declare their assets.
The judge said the attempt to quash the criminal charges in the Sessions Court should be made by way of a criminal application, and not by the way of a judicial review.
In their application for a judicial review, Daim and his family also claimed that it was not proper to commence an investigation, as the alleged offences were stale, as all this occurred more than 20 years ago.
However, Wan Ahmad disagreed with this notion, citing that the Latin maxim 'nullum tempus occurit regi' applies.
“It simply means 'time does not run against the crown'. The defence that the alleged offences are stale, so to speak, is unknown to our criminal law…the contention that an offence is stale can only be argued as an extenuating circumstance during plea mitigation upon conviction,” the judge said.
He made no order as to costs after refusing to grant leave for a judicial review.
On Jan 10, Daim, whose real name is Che Abdul Daim Zainuddin, together with Na’imah and their four children — Asnida, Md Wira, Muhammed Amir Zainuddin and Muhammed Amin Zainuddin — along with their company Ilham Tower Sdn Bhd, filed a judicial review application to halt the MACC's investigation, and to quash the freezing of their accounts and the seizure of Ilham Tower.
For a judicial review, which is normally done ex parte or only in the interest of one side, leave has to be gained before the full merits of the review can be heard to ensure that the application is not frivolous, vexatious, or an abuse of the court process.
Senior federal counsels Liew Horng Bing and Shamsul Bolhassan represented the MACC, while Tan Sri Tommy Thomas, Rajesh Nagarajan and Sachpreetraj Singh Sohanpal represented Daim and his family.