30 Sep 2016

Can ex­AG Gani challenge his sacking now?

Following the much­anticipated appearance of former attorney­general (AG) Abdul Gani Patail at last week’s International Malaysian Law Conference, one question has arisen, namely whether he could take legal action over his abrupt removal on July 28 last year.

Former Malaysian Bar president Kuthubul Zaman Bukhari, who was on the panel with the former AG, suggested that Gani take action over his sudden removal from being the top prosecutor in the country, and also who led the special task force comprising several agencies to investigate 1MDB.

Kuthubul opined there ought to be checks and balances following Gani’s sudden removal.

Gani himself, who was posed with the question, was not direct in his answer but said that unlike judges or the auditor-­general, the AG does not have security of tenure as it was up to the PM to remove the AG “at his whim”. However, Gani said he stands to be guided on this issue.

To challenge a decision by a person in authority can be done through a court by way of judicial review before the High Court.

It is the High Court who could grant an order of mandamus (to compel) or certiorari (to quash) an order. This follows as a civil servant requires a proper hearing before one is removed from office.

Order 53 rule 3(6) of the Rules of High Court, provides that an application for judicial review should be filed within 40 days from the date when the decision is first communicated to the applicant, and that the court may extend the period from 40 days.

When the Rules of Court 2012 were made and came into effect on Aug 1, 2012, the time frame to apply for judicial review was extended from 40 days to three months.

“Order 53 rule 3 (6) and (7) of the Rules of Court 2012 says: “(6) An application for judicial review shall be made promptly and in any event within (3) three months from the date when the grounds of application first arose or when the decision is first communicated to the applicant.

"(7) The court may, upon an application, extend the time specified in rule 3 (6) if it considers that there is good reason for doing so."

Needs court permission 

As Gani’s dismissal was more than 14 months ago and based on the Rules of Court 2012, he should apply for an extension of time in filing the application to challenge the order in removing him in July 2015.

Gani must first obtain leave from the court to explain why he required an extension of time to file the application, if indeed he so chooses to do it.

In the Wong Kin Hoong and three others who were acting on behalf of Kampung Bukit Koman) vs the director­general of the Department of Environment and Raub Australian Gold Mining Sdn Bhd, Court of Appeal president Justice Md Raus Sharif in rejecting the appeal by the residents, expressed that it is vital to gain the court’s permission for an extension or abide by the rules.

“We are of the view that the time frame in applying for judicial review prescribed by the Rules is fundamental.

“It goes to jurisdiction and once the trial judge had rejected the explanation for the delay for extension of time to apply for judicial review, it follows that the court no longer has the jurisdiction to hear the application for leave for judicial review. Whether the application has merits or not, is irrelevant,” he said.

Despite this, Kuthubul opined that there is no harm for Gani in trying if he wants to.

“This has to do with natural justice. Let the courts decide on this,” the former Malaysian Bar president said, in noting that the time to file a judicial review had probably elapsed.

Although Gani has not filed any application, there are still three ongoing judicial review applications to challenge his successor Mohamed Apandi Ali’s decision to clear Prime Minister Najib Abdul Razak over the 1MDB saga.

This follows applications from former de facto law minister Zaid Ibrahim, former Batu Kawan Umno division vice ­chief Khairuddin Abu Hassan and the Malaysian Bar, which have yet to be decided.

As for whether a civil suit could be filed and not via judicial review, lawyer Ang Hean Leng thinks it may also fail.

“If Gani is to file a civil suit over the government’s action in July last year, ending his tenure as AG, his suit would most likely be struck out.

 “The government’s action was an exercise of public law powers. Disputes would revolve around principles of public law. Judicial review would be the appropriate mode of legal action,” he said.

Ang added that the court would not convert the civil suit to judicial review because the time limit to file a judicial review application ended three months after July 27, 2015.


Source : http://www.malaysiakini.com/news/357382

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