Sessions Court's refusal to refer legal questions denied fundamental right, says Nai'mah's counsel
KUALA LUMPUR: Counsel for Toh Puan Na'imah Abdul Khalid informed the High Court today that a lower court's refusal to refer eight questions of law had effectively denied her a fundamental right, leaving critical legal issues central to the case unresolved.
Na'imah filed the application in the Sessions Court in February last year to refer the legal questions to the High Court.
Her counsel, Datuk Dr Gurdial Singh Nijar, submitted that the Sessions Court had misconstrued the law governing applications to refer constitutional questions under Section 30 of the Courts of Judicature Act 1964, thereby denying the applicant clarity on her legal position and resulting in a miscarriage of justice.
'This oversight calls for rectification in order to uphold the integrity of the judicial process and ensure that the applicant's rights are fully respected,' said Gurdial.
He made the submission during the hearing of Na'imah's application to review the Sessions Court's decision to dismiss her request for a referral of legal questions in the undeclared assets case, heard before Judge K. Muniandy today.
Gurdial contended that Na'imah was called to assist in the investigation against her late husband, Tun Daim Zainuddin, strictly in her capacity as a witness, and at all material times, she was never regarded as a co-suspect.
'Na'imah complied with the section 36(1)(b) notice requiring her to disclose information in respect of assets to the best of her ability and she had made a statement on oath in this respect.
'The MACC took the view that her compliance was insufficient and perhaps in retaliation, the MACC commenced the present charge against my client,' he said.
He added that based solely on the alleged non-compliance, a witness (Na'imah) is now subjected to criminal prosecution and faces the prospect of a custodial sentence of up to five years and a fine of up to RM100,000.
Justice Muniandy fixed July 11 for the parties to continue their submissions.
On Jan 23, 2024, Na'imah was charged in the Sessions Court for failure to comply with a notice to declare her assets, which included Menara Ilham and several other properties in Kuala Lumpur and Penang.
She was charged under Section 36(2) of the MACC Act 2009, which carries a maximum penalty of five years imprisonment or a fine of RM100,000 upon conviction.
On Feb 29, 2024, Na'imah filed an application to refer questions of law on Sections 30(5), 36(2) and 62 of the Malaysian Anti-Corruption Commission (MACC) Act 2009, as well as Section 32(3)(b) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act (AMLA) 2001 to the High Court.
However, on Feb 18 this year, Sessions Court Judge Azura Alwi dismissed Na'imah's application on the ground that it disclosed no merit, holding that no constitutional questions arose for determination.
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