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2019 MarsdenLR 3010
COURT OF APPEAL (PUTRAJAYA)
HASZANAH MEHAT, JJCA, LAU BEE LAN, J, HASNAH MOHAMMED HASHIM, J
Datoâ Sri Mohd. Najib bin Tun Haji Abdul Razak – Plaintiff
Versus
Peguam Negara & Ors – Defendant
RAYUAN SIVIL NO. W-01(A)-146-03/2019
Sri Shafee Abdullah Sarah Abishegam (Shafee & Co.) Harvinderjit Singh Wee Yeong Kang (Shafee & Co.) for the appellant.
Tommy Thomas (Attorney General) (Senior Federal Counsels) Shamsul Bolhassan Ahmad Akram Gharib Mustapha Kunayalam Liew Horng Bin Low Wen Zhen Mohamad Syakil Mohamad Zulkifli Ann Khong Hui Lee counsel for the Respondents.
Judicial review can be pursued by individuals claiming infringement of rights due to improper administrative actions, distinguishing between public law remedies and private motions, with the court found to have erred in dismissing the applications on grounds of multiplicity.
Headnote:(A) Criminal Procedure Code - Section 376(3) - Judicial review - Applications for leave to commence judicial review were refused by the High Court, citing multiplicity of proceedings as a ground for dismissal - Applicants claimed their rights were infringed by the appointment of a Senior Deputy Public Prosecutor - Court of Appeal found the Applicants satisfied the low threshold for leave, allowing the appeals and remitting the applications back to the High Court for substantive hearing. (Paras [3], [28], [46], and [53])
(B) Legal principles - Justiciability of administrative decisions can be challenged by individuals adversely affected - There is a distinct difference between public law remedies in judicial review and private law motions for disqualification. (Para [48])
Facts of the case:
The Applicants, a former Prime Minister and his counsel, sought judicial review against the Attorney General's decision to appoint a Senior Deputy Public Prosecutor, arguing it was ultra vires and created a conflict of interest due to the prosecutor's ongoing private practice.
Findings of Court:
The Applicants were found to have established an arguable case and were not estopped from bringing the judicial review.
Issues: The primary issues included the legality and appropriateness of the appointment of the Senior Deputy Public Prosecutor and the implications of res judicata.
Ratio Decidendi: The Court determined that the High Court erred in dismissing the judicial review applications based on multiplicity without addressing the justiciability of the AG's decision, emphasizing the significance of examining allegations against the AG's actions.
Result: Appeals allowed.
| Table of Content |
|---|
| 1. overview of appeals and procedures (Para 1 , 2 , 3) |
| 2. judicial review applications and claims (Para 5 , 6) |
| 3. background on applicants and prosecution (Para 7 , 8 , 9 , 11) |
| 4. request for documents and grounds for challenge (Para 12 , 13 , 15) |
| 5. arguments on judicial review standards (Para 20 , 21 , 23 , 30) |
| 6. res judicata and legislative immunity discussions (Para 24 , 25 , 39 , 41) |
| 7. decision on the merits and judicial review findings (Para 28 , 46 , 53) |
Hasnah Mohammed Hashim JCA:
JUDGMENT OF THE COURT
[1]ÂÂThere are two (2) appeals emanating from one judgment arising from the decision of the High Court refusing the applications for leave to commence judicial review proceedings:
(a)WA-25-393-12/2018 and
(b)WA-25-377-12/2018.
[2]ÂÂIn the High Court the two (2) applications were heard together and after hearing submissions by counsels the learned High Court Judge dismissed both applications. Datoâ Sri Mohd Najib bin Hj Abdul Razak (âDS Najibâ) is the Appellant in appeal no. W-01(A)-146-03/2019 (â146â), and Muhammad Shafee bin Md Abdullah (âTS Shafeeâ) is the Appellant in appeal no. W- 01(A)-148-03/2019 (â148â). Aggrieved with the decision of the High Court, DS Najib and TS Shafee (collectively referred to as âthe Applicantsâ) through appeals 146 and 148 respectively appealed to the Court of Appeal.
[3]ÂÂBoth the appeals were fixed before us. There was no order for the appeals to be heard together. However, since the issues to be argued were identical in both appeals it was agreed by the parties that for the purposes of both the appeals it was convenient that Applicantsâ counsels submitted first. The learned Attorney General (AG) appearing on behalf of the Respondents addressed this Court after both counsels in appeals 146 and 148 have submitted. It was also agreed that the decision of this Court in appeal 146 will be binding on appeal 148. After due deliberation and having carefully considered the submissions of both parties on 26.8.2019 we found that there are merits in the appeals and allowed both the appeals with costs. We now give reasons for our decision with respect to both the appeals in one common judgment.
[4]ÂÂFor ease of reference, in this judgment, the parties will be referred to as they were in the High Court.
The Judicial Review Applications
[5]ÂÂBoth the Applicants in their respective application sought the following prayers:
1.An order of certiorari to quash and/or set aside the decision of the 1st Respondent to not produce and/or disclose to the Applicant a copy of the letter of appointment in relation to the appointment of the 3rd Respondent as a Senior Deputy Public Prosecutor purportedly under Section 376 (3) Criminal Procedure Code
2.An order of mandamus or otherwise that the Respondents do forthwith produce and/or disclose to the Applicant a copy of the letter of appointment executed by the 1st Respondent in relation to the appointment of the 3rd Respondent as a Senior Deputy Public Prosecutor purportedly under Section 376 (3) Criminal Procedure Code
3.A declaration that the 1st Respondentâs appointment of the 3rd Respondent as a Senior Deputy Public Prosecutor pursuant to a letter of appointment dated on or about 30.8.2018 and/or otherwise is ultra vires and/or in excess of the statutory powers of the 1st Respondent and is therefore a nullity, void and/or of no effect;
4.An order of certiorari to quash and/or set aside the 1st Respondentâs appointment of the 3rd Respondent as a Senior Deputy Public Prosecutor pursuant to a letter of appointment dated on or about 30.8.2018 and/or otherwise;
5.A declaration that there is a conflict of interest between the appointment of the 3rd Respondent as a Senior Public Prosecutor under Section 376 (3) Criminal Procedure Code
6.A declaration that the 3rd Respondent has acted and/or continues to act in conflict of interest of his purported appointment as a Senior Deputy Public Prosecutor;
7.A declaration that the 3rd Respondent is not
