DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR [BAHAGIAN RAYUAN DAN KUASA-KUASA KHAS] PERMOHONAN UNTUK SEMAKAN KEHAKIMAN NO. 25-50-03/2015
Dalam Perkara mengenai permohonan oleh Datuk Seri Anwar Ibrahim untuk semakan kehakiman terhadap keputusan oleh Responden Kedua bertarikh 4hb Mac 2015;
Dalam Perkara Seksyen 25 Akta Mahkamah Kehakiman 1964;
Dalam Perkara Perenggan 1 Jadual Akta Mahkamah Kehakiman 1964;
Dalam Perkara Perlembagaan Persekutuan; Dan
Dalam Perkara Akta Penjara 1995;
Dalam Perkara Aturan 53 Kaedah-Kaedah Mahkamah 2012.
DATUK SERI ANWAR IBRAHIM
1. MENTERI HAL-EHWAL DALAM NEGERI … RESPONDEN-
2. KOMMISIONER JENERAL PENJARA, MALAYSIA RESPONDEN
GROUNDS OF JUDGMENT
1. This is the applicant’s application for leave under Order 53 Rule 3 of
the Rules of Court 2012 (“RoC”) for the following reliefs:
1.1. A certiorari to be issued to quash the decision of the 2nd respondent dated 4th March 2015;
1.2. A mandamus to compel the 2nd respondent to allow the applicant to attend the sitting of the Dewan Rakyat commencing on 9th March 2015 and concluding on 9th April 2015;
1.3. A declaration that the applicant is entitled to attend the sitting of the Dewan Rakyat commencing on 9th March 2015 and concluding on 9th April 2015;
1.4. Alternatively the applicant prays for any such relief as the justice of the case demands pursuant to paragraph 1 of the Schedule to the Courts of Judicature Act 1964; and
1.5. No order as to costs.
2. A certificate of urgency is also filed urging this Court to fix an early
date for the hearing of the ex-parte application for leave for judicial
review (“Enclosure 1”) in view of the upcoming Dewan Rakyat sitting on 9th March 2014 and concluding on 9th April 2015.
3. For the purpose of the hearing of Enclosure 1 the applicant has filed the following documents:
3.1. The Statement pursuant to Order 53 3 (2) of the RoC 2012 (“Enclosure 2”).
3.2. The Affidavit in Support of the applicant affirmed on 16th March 2015 (“Enclosure 3”).
3.3. The Supplementary Affidavit of Nurul Izzah binti Anwar affirmed on 25th March 2015 (“Enclosure 6”).
THE BRIEF BACKGROUND
4. The brief background leading to Enclosure 1 can be stated as follows:
4.1. The applicant is presently serving a five (5) year prison sentence after the Federal Court dismissed his appeal against conviction and sentence for an offence under section
377B of the Penal Code. At the time of his conviction and sentence, he was a Member of Parliament.
4.2. While serving the sentence the applicant’s wife and daughter applied for a free pardon on his behalf from the Yang di-Pertuan Agong. The petition was presented to the palace.
4.3. The applicant while serving the prison sentence applied to
the Commissioner General of Prisons (“the 2nd
respondent”) to be allowed to attend Dewan Rakyat sittings.
4.4. The 2nd respondent refused the application (see Exhibit “C” of Enclosure 3).
4.5. Aggrieved by this decision the applicant applied for an order of certiorari to quash the decision refusing him liberty to attend the Dewan Rakyat sittings and an order in the nature of mandamus to direct the 2nd respondent to ensure the applicant is allowed to attend the said sittings.
4.6. The grounds to quash the decision are as stated in the Order 53 Statement (“Enclosure 2”). The applicant has framed this ground in the following manner:
4.6.1. Under Article 48 (4) (c) of the Federal Constitution the application is still a member of the Dewan
Rakyat until the Yang di-Pertuan Agong disposes his application for a free pardon. Until such time the applicant is entitled to attend the Dewan Rakyat sittings.
4.6.2. The applicant in his Order 53 Statement states that the Yang di-Pertuan Agong has not disposed of his pardon. There is no evidence to support this statement from the palace.
4.6.3. The applicant argues that the palace must inform him or his family that the pardon has been dismissed.
4.7. Enclosure 1, 2 and 3 were served on the Honourable Attorney General’s Chambers on 19th March 2015 pursuant to Order 53 (3) of the RoC.
4.8. On the date fixed for hearing the learned Senior Federal Counsel, Mr. Amarjeet Singh who appeared on behalf of the Attorney General’s Chamber (“the AGC”) informed the Court that the AGC required a short adjournment of the hearing of Enclosure 1 to enable the AGC to ascertain the status of the pardon petition presented to the palace by the applicant’s wife and daughter on behalf of the applicant. According to the learned Senior Federal Counsel (“SFC”), the status of pardon petition if known would definitely
determine if leave ought to be granted to the applicant for the reliefs sought vide Enclosure 1. Enclosure 1 was then fixed for hearing on 27th March 2015.
4.9. On 27th March 2015 when all parties appeared before me for the hearing of Enclosure 1, I was informed by the learned SFC that an affidavit has been filed vide Enclosure 7, by one, Dato’ Nursiah binti Arshad, the Director General of the Legal Affairs Division of the Prime Minister’s Department to notify the Court of the status of the petition for a free pardon, which was presented to Yang di-Pertuan Agong by the applicant’s wife and daughter on his behalf.
4.10. The said Dato’ Nursiah binti Arshad who is currently in charge of the Secretariat of the Pardons Board for the Federal Territory of Kuala Lumpur, Labuan and Putrajaya has affirmed that she has attended the meeting of the Pardons Board held on 16th March 2015 which sat to deliberate the petition for pardon presented by the applicant. The said Dato’ Nursiah binti Arshad has stated that she was directly involved and fully acquainted with the facts surrounding the applicant’s petition for a free pardon.
4.11. The learned Counsel for the applicant objected to the same on the ground that the applicant has not been informed that the petition for free pardon has been disposed of by the Yang di-Pertuan Agong. Neither had the same been notified
to the Speaker of the Dewan Rakyat. The learned Counsel requested for time to verify the same with the applicant. The case was then fixed to 1st April 2015 for hearing of Enclosure 1.
4.12. When the learned Counsel for the applicant appeared on 1st April 2015 for hearing of Enclosure 1, the learned Counsel informed the Court that the applicant did not agree that a decision has been made by the Yang di-Pertuan Agong vide Exhibit A to Enclosure 7 filed herein. The learned Counsel informed the Court that she has visited the applicant in the prison and was informed by the applicant that he has yet to receive any notification from the Yang di-Pertuan Agong pertaining to his petition for a free pardon.
4.13. I proceeded to hear Enclosure 1 on this date.
Threshold at Leave stage
5. It is settled law, the function of the Court in exercising its power to grant leave for judicial review is to sieve through the application before it and determine:
5.1. That the application is not frivolous and vexatious; and
5.2. There is an arguable case to merit further argument on the substantive motion.
(see Ahli Suruhanjaya yang membentuk Suruhanjaya Siasatan Mengenai Rakaman Klip Video yang Mengandungi Imej Seorang yang dikatakan Peguambela dan Peguamcara Berbual Melalui Telefon Mengenai Urusan Pelantikan Hakim-Hakim v. Tun Dato’ Seri Ahmad Fairuz bin Dato’ Sheikh Abdul Halim  MLJU 698).
6. In R v. Secretary of State for Home Department, ex parte Rushkanda Begum  Crown Office Digest 109, Dip, the Court of Appeal in England had laid down the following guidelines in respect of an application for leave for judicial review:
6.1. If it is clear to the judge that there is a point for further investigation on a full inter partes basis with all evidence as is reasonably necessary on the facts and all such arguments on the law then leave ought to be granted;
6.2. If the judge hearing the leave application is satisfied that there is no arguable case the judge should dismiss the application for leave to move for leave for judicial review;
6.3. If judge is not really sure whether there is or is not an arguable case, the judge may invite the putative respondent
to attend and submit as to whether or not leave ought to be granted; and
6.4. In exercising the powers in inter partes leave application the test applicable by the Court must be the same approach as the test adopted in deciding whether to grant leave to appeal against the arbitrator’s award. The Court had to consider the facts and law before it and ask itself whether the Court is satisfied that there is a case fit for further consideration or otherwise.
7. In disposing Enclosure 1, the Court is also mindful that it is trite law that the threshold for the granting of leave for judicial review is very low (see Teh Guat Hong v. Perbadanan Tabung Pendidikan Tinggi Nasional Civil Appeal No. W-01(IM)-367-09/2014 of Court of Appeal).
8. Upon perusal of the cause papers and upon hearing the submissions of the learned Counsel for the applicant and the SFC the following as my decision:
8.1. Article 48 (c) of Federal Constitution (“FC”) states:
“Disqualification for membership of Parliament
48. (1) Subject to the provisions of this Article, a person is disqualified for being a member of either House of Parliament if:-
(e) he has been convicted of an offence by a Court of Law in the Federation (or, before Malaysia day, in the territories comprised in the State of Sabah or Sarawak or in Singapore) and sentenced to imprisonment for a term of not less than one year or to a fine not less than two thousand ringgit and has not receive a free pardon; or
8.2. Article 48 (4) (c) of the FC further states that the applicant’s disqualification as a member of the House of Representative does not take effect until the petition for pardon is disposed of. Article 48 (4) (c) states:
“if within the period specified in paragraph (a) or the period after the disposal of the appeal or other court proceeding specified in paragraph (b) there is filed a petition for a pardon, such disqualification shall take effect immediately upon the petition being disposed of”.
8.3. From Enclosure 7 filed herein, the applicant’s petition has been heard and disposed of, on 16th March 2015. In the absence of evidence to refute this fact of disposal of the
petition for pardon there is nothing before the Court to show that, the applicant’s petition for pardon has not been disposed of. The applicant has not refuted this fact in the form of an affidavit but has complained that he has yet to receive the decision of His Majesty the Yang di-Pertuan Agong. He further contends that the palace must inform him personally or his family of the decision to dismiss the petition.
8.4. Therefore, there is unrefuted evidence before me to prove that the Pardons Board had considered and deliberated the petition presented by the applicant through his wife and daughter to the Yang di-Pertuan Agong for free pardon and on 16th March 2015 His Majesty Yang di-Pertuan Agong has rejected the said petition and ordered the punishment imposed by the Federal Court on the applicant to take its course.
8.5. The evidence that the petition has been disposed of by Yang di-Pertuan Agong was provided by the Secretariat of the Pardons Board who has deposed in an affidavit filed herein (“Enclosure 7”) stating that she attended the Pardons Board meeting where His Majesty the Yang di-Pertuan Agong disposed the applicant’s petition for a free pardon presented to the palace on 16th March 2015 and directed that the sentence to take its course (see Exhibit “A” to the Affidavit of Dato’ Nursiah binti Arshad Enclosure 7).
8.6. Exhibit A to Enclosure 7 is a letter directed to the Prison Director (“the 2nd respondent”) informing the 2nd respondent that the petition for pardon has been dismissed and the applicant is required to serve his sentence.
8.7. As there is a decision made by the Yang di-Pertuan Agong on the status of the applicant as a member of the Dewan Rakyat, the applicant is therefore disqualified to be a Member of Dewan Rakyat and to attend the sittings of the Dewan Rakyat under Article 48 (1) (e) of the FC.
8.8. On the totality of the evidence before me I am satisfied that the judicial review application ought to be dismissed by this Court at this juncture as the applicant has failed to satisfy the requirement for leave to be granted as set out in the cases discussed above. In any event, there is no point for me to grant leave as Enclosure 1 is doomed to fail in view of the status of the applicant’s petition having been decided by the Yang di-Pertuan Agong. The language of Article 48 (4) (c) of the FC is clear and unambiguous and ought to be given effect by this Court.
9. Having considered the cause papers filed herein and having heard the argument by the learned Counsel for the applicant and the SFC
for the Attorney General’s Chambers and having given the matter a very careful and serious consideration I am of the view that leave ought not to be granted by this Court. Accordingly, I dismissed Enclosure 1 with costs of RM3,000.00 to be paid by the applicant to the respondent.
(ASMABI BINTI MOHAMAD)
HIGH COURT SPECIAL AND APPELLATE POWERS
Date of Grounds Date of Decision Date of Notice of Appeal
12th May 2015 1st April 2015 10th April 2015
1. Messrs Daim & Gamany Advocate & Solicitor For and on behalf the Applicant Unit A-1-10, Block A, 8 Avenue Jalan Sungai Jernih 8/1,
46050 Petaling Jaya
SELANGOR DARUL EHSAN
[Ref: SR/L.7971/2015] … Ms. Latheefa Beebi Koya
(Mr. Dheeraj Bharj with her)
2. Peguam Kanan Persekutuan,
Jabatan Peguam Negara, Malaysia
(Civil Division) Aras 3, Blok C3,
Pusat Pentadbiran kerajaan Persekutuan 62512 PUTRAJAYA
[Ref: PN/WKL/HQ16/07/2015] … Mr. Amarjeet Singh
(Ms. Alice Loke with him)