PUTRAJAYA (Oct 15): A three-member Court of Appeal (COA) bench has dismissed the appeals of 32 Barisan Nasional (BN) and UMNO politicians who are challenging the notices of compound issued by the Malaysian Anti-Corruption Commission (MACC) on them for allegedly receiving funds from Datuk Seri Najib Razak that originated from 1Malaysia Development Bhd (1MDB).
The quorum led by Justice Datuk Suraya Othman said the appellants, comprising Pontian member of parliament (MP) Datuk Seri Ahmad Maslan, former Johor Bahru MP Tan Sri Shahrir Samad, UMNO organising secretary Datuk Mohd Sumaili Reduan as well as other former and current elected representatives, cannot challenge the decision of the Attorney General that allowed the notices to be issued against them.
Furthermore, Justice Suraya said all of them had not been charged but only had compounds issued on them which they could choose to pay or face the consequences if they did not abide.
"It is trite that the power of the public prosecutor (PP) to charge any person can be exercised by him at any time. In our present appeals, no charges have been preferred against all the appellants.
"At this juncture, we are of the view that it is premature on the part of the appellants to challenge the power of the PP in the exercise of his discretion to authorise the MACC and its chief commissioner to issue the offer to compound the offence under the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activity Act 2001 (AMLATFPUA).
"Based on the reasons above the appeals are hereby dismissed," she said.
The bench made no order as to costs.
The other two members of the bench were Justices Datuk Daryl Goon Goon Siew Chye and Datuk Seri Mariana Yahya.
The notices of compound were issued by the MACC in 2019, after the anti-graft body managed to trace the money trail of the proceeds from Najib that originated from 1MDB.
Besides the trio named above, others included Pasir Mas UMNO division chief Datuk Hanafi Mamat; Penang UMNO liaison secretary Datuk Musa Sheikh Fadzir, who is also Bukit Mertajam UMNO division chief; Bandar Tun Razak UMNO division chief Datuk Rizalman Mokhtar; Taiping UMNO division chief Datuk Ahmad Shalimin Ahmad Shaffie; Pahang state exco member Datuk Nazri Ngah; Husain Awang of PAS; and Perak Menteri Besar Datuk Saarani Mohamad.
They had filed a judicial review application to challenge the issuance of the notices, but then High Court judge Datuk Nordin Hassan (now COA judge) dismissed the leave application on a preliminary objection made by the MACC.
Nordin denied giving permission to all the applicants challenging the MACC notices issued to them under Section 92 of AMLATFPUA in October 2019.
"The actions by the MACC to issue a compound is considered part and parcel in criminal proceedings and cannot be reviewed under judicial review by another court," the High Court judge said in his brief grounds.
On Friday, all of them were represented by Mohamed Shahrul Fazli Kamarulzaman, Mohamed Baharudeen Mohamed Ariff and Mohd Shahril Madisa.
They told the COA that leave should be granted as they were challenging the legality in notices issued by the MACC and that the court has the power for judicial review using the Datuk N Sundra Rajoo vs the Attorney General case at the Federal Court and former premier Datuk Seri Najib Razak's prosecution in the 1MDB case.
Furthermore, they added that Najib had not been found guilty of his 1MDB charges and hence the issuance of the notice was unwarranted.
However, Justice Suraya and Justice Goon contended that both cases were clearly distinguished as both had already been charged.
"In this case, they had not been charged. Notices of compound are only issued against them and it is their decision on them to pay or risk being charged. There is no decision that they would be charged, and hence it was not amenable for judicial review," both judges said.
Meanwhile, senior federal counsel Ahmad Hanir Hambaly who appeared with federal counsel Ng Wee Li for the MACC and its chief commissioner said the application for judicial review was premature and hence they should not bring this matter to the civil court.
They further contended that if any applications should be made, it should be at the criminal court and not the civil court.