PEGUAM NEGARA MALAYSIA v DATO' SRI MOHD NAJIB BIN TUN HJ ABD RAZAK

Case Significance

Addresses the Attorney General's role under Order 53 rule 3(3) of the Rules of Court 2012 at the leave stage of judicial review, and the threshold for allowing a challenge, including one connected with the pardon power under Article 42 of the Federal Constitution, to proceed to a substantive hearing.

This Federal Court decision, one of two appeals by the Attorney General heard together, concerns the leave stage of a judicial review touching on a royal pardon, and the role of the Attorney General in such proceedings. The respondent had applied in the High Court for leave to bring judicial review proceedings connected with the exercise of the pardon power under Article 42 of the Federal Constitution and matters relating to his imprisonment. The High Court dismissed leave; the Court of Appeal, by a majority, allowed the respondent's appeal and set aside that dismissal, and the Attorney General appealed to the Federal Court. The questions of principle included the Attorney General's role under Order 53 rule 3(3) of the Rules of Court 2012 at the leave stage, in particular whether there is a duty to confirm or disclose documents and how the burden of proof operates where evidence is disputed, and the distinction between the Attorney General's procedural role and any role as a substantive respondent. The appeal also engaged the justiciability of decisions connected with the pardon power and the extent to which the courts may examine such matters. The Federal Court dismissed the Attorney General's appeal against the Court of Appeal's decision allowing leave, so that the challenge could proceed past the leave threshold, and, having disposed of the connected appeal concerning fresh evidence, set aside part of the Court of Appeal's order, allowed a related prayer, and remitted the matter to the High Court for the substantive judicial review to be heard before a different judge, making no order as to costs. The judgment is significant for its treatment of the Attorney General's function at the leave stage of judicial review and of the threshold an applicant must cross to have a challenge, including one touching the pardon power, proceed to a full hearing on the merits.