KUALA LUMPUR: The High Court dismissed the application of former finance minister Tun Daim Zainuddin,86, and his family for a judicial review to challenge the Malaysian Anti-Corruption Commission's (MACC) probe into their financial dealings.
Judge Datuk Wan Ahmad Farid Wan Salleh in his broad grounds of judgment said Daim's contention against the anti-graft body should be addressed by a criminal application and not a judicial review.
"The allegation that the investigation against the applicant (Daim) is politically motivated or that Prime Minister Datuk Seri Anwar Ibrahim considered the first applicant (Daim) as a "political foe" should be addressed by Daim at the criminal trial.
"The issue of the allegation that the investigation and eventual prosecution of Daim and Toh Puan Na'imah Khalid are actuated by political motives should be addressed at the criminal trial," he said.
He 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.
In the judicial review application, Daim and Na'imah, their four children and Ilham Tower Sdn Bhd were the first to seventh applicants while MACC and the prosecution were named as respondents.
The judge ruled that Daim and his family had failed to establish "mala fide" against the MACC officers and mere suspicion or even allegation of intimidation was insufficient.
The applicants, he said, 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.
"In short, the threshold is not crossed. Since the applicants have failed to establish 'mala fide', this application for leave for a judicial review must fail.
"The application for leave is refused. In view of my finding, the relief sought for an order of stay is equally refused. There shall be no order as to costs," he said.
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 at the Sessions Court.
He also said the assertion that the alleged offences were stale was not a defence under the country's criminal law, referring to Daim's defence team's submission that there was a delayed investigation of some 22 years after he had left public office.
The judge said the court couldn't impose a time limit required for the investigation.
"As to whether it was proper to commence an investigation on an allegation of an offence that occurred more than 20 years ago, I am of the respectful view that the maxim of nullum tempus occurit regi applies.
"It simply means time does not run against the crown. The defence of the alleged offence is stale, so to speak, is unknown to our criminal law," he said.
The prosecution was represented by Senior Federal Counsel Shamsul Bolhassan while Tan Sri Tommy Thomas appeared for Daim.
In January, Daim and his family filed a judicial review to challenge MACC's probe.
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.
