PUTRAJAYA: Former finance minister Tun Daim Zainuddin and his family have failed to reinstate a judicial review to challenge the Malaysian Anti-Corruption Commission's (MACC) probe into their financial dealings.
A three-member Court of Appeal bench led by Datuk Azizah Nawawi dismissed their appeal, citing actions and decisions of public authority in the context of criminal investigations are not subjected to judicial review.
Azizah, when reading the unanimous decision, said the appellants (Daim and family) could raise their arguments during the criminal process itself within the trial or application to quash the charges.
"It cannot be said that the only option for the applicants is that of a judicial review as the legality of the charges can be challenged in the criminal trial itself.
"To hold otherwise (allowing the judicial review) in our minds would expose the criminal investigative process of all law enforcement agencies in the country to constant judicial review. The panel makes no order as to costs," she said.
Other panel members were Datuk Hashim Hamzah and Datuk Azizul Azmi Adnan.
In the judicial review application, Daim and Toh Puan Na'imah Khalid, their four children and Ilham Tower Sdn Bhd were the first to seventh applicants while MACC and the prosecution were named as respondents.
On March 3, the High Court dismissed their application by stating that Daim's contention against the anti-graft body should be addressed by a criminal application and not a judicial review.
Judge Datuk Wan Ahmad Farid Wan Salleh had said, as a general rule, an exercise of power in the course of a criminal investigation was not open to judicial review under Order 53 of the Rules of Court.
He had said Daim and his family failed to establish with compelling evidence and prima facie proof that the decision or omission of the MACC's investigating officer falls within the traditional grounds of judicial review.
The judge also said Daim and Na'imah's attempt to quash the prosecution's charges should also be made by way of a criminal application.
He said it was now open for them to do so since they had already been charged in the Sessions Court.
The prosecution was represented by Senior Federal Counsel Shamsul Bolhassan while Tan Sri Tommy Thomas appeared for Daim and his family.
The applicants claimed that the anti-graft body has no reasonable cause to investigate them under the MACC Act or the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001.
The applicants sought a certiorari order against the MACC to quash all investigations instituted against Daim and his family members and all notices issued by the commission.
On Jan 23 and 29 respectively, Na'imah and Daim were separately charged under Section 36(2) of the MACC Act for failure to declare their assets to the body.