IN Public Prosecutor v Dato’ Sri Mohd Najib bin Hj Abd Razak [2019] 4 MLJ 421, the appellant (Public Prosecutor) appealed against the decision of the Court of Appeal (COA) to grant a stay of the respondent’s (Najib) criminal trial for seven offences in the High Court pending the disposal of his appeal to the Federal Court against the COA’s decision on three pre-trial criminal applications he had made.

The appellant argued that the COA should not have granted the stay since it was not empowered by statute to do so; that even a stay granted in exercise of the court’s inherent jurisdiction should only be made in exceptional circumstances.

The appellant submitted that the circumstances in the instant case militated against the grant of a stay of proceedings because, among others, the respondent, a former prime minister of Malaysia, was charged with serious offences and the cases against him had generated much national and international attention and that a speedier trial would give the respondent an earlier opportunity to vindicate himself.

In granting the stay application, the COA opined that the respondent’s appeals concerned novel issues of law and did not appear to be filed for the sake of delaying his trial. The COA also held that special circumstances would determine whether a stay should be granted whether the proceedings were civil or criminal.

The Federal Court, sitting with seven judges, unanimously allowed the appeal. The apex court accordingly set aside the COA’s stay order, and dismissed the respondent’s oral application for a stay of proceedings. The case was remitted to the High Court for trial.

Delivering the judgment of the Court, Chief Justice Richard Malanjum held that the determinative principles, in considering an application for stay of criminal proceedings when commencement of the trial was imminent or continuing in the court of first instance, included the courts exercising great caution in allowing forms of collateral challenge, be it commenced in the same court or another civil or criminal court, which have the net effect of staying the criminal proceedings or would interfere with or impinge directly upon the normal course of proceedings in a trial – civil or criminal.

The apex court had in 2016 similarly dismissed a challenge on the validity or constitutionality of the law passed by a state legislature by way of collateral attack. This was to prevent any frivolous or vexatious challenge being made on the relevant legislation.

The validity or constitutionality of the relevant legislation could only be questioned in proceedings for a declaration that the legislation was invalid and that too with the leave of a judge of the Federal Court. (See State Government of Negeri Sembilan & Ors v Muhammad Juzaili bin Mohd Khamis & Ors [2016])

It is not surprising therefore for Prime Minister Anwar Ibrahim to object to the application filed by Kedah Menteri Besar Muhammad Sanusi Md Nor for the High Court to decide on several questions of law pertaining to the royal pardon granted to Anwar five years ago. 

In his objection, Anwar said Sanusi’s application is, among others, irrelevant, frivolous and an abuse of the judicial process.

It remains to be seen how the High Court would decide on Sanusi’s application. The court may have to consider whether Sanusi’s application is a collateral challenge before the court hearing a defamation suit. – June 11, 2023.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.