AMLA Malaysia – Challenging An Act of Seizure By Way Of Judicial Review

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In this article, we will briefly share (via a similar case) whether an act of seizure can be challenged by way of judicial review. This answer was briefly answered (towards the end of the judgment) in the recent case of Zi Publications Sdn Bhd 7 Anor v Jabatan Agama Islam Selangor (JAIS) & Ors1.

Brief facts of the case

Zi Publication published a book entitled “Allah, Kebebasan dan Cinta : Keberanian Untuk Menyelaraskan Kebebasan Dengan Iman”. The book was also translated into English. Both versions were respectively published and circulated in the local market in June 2011 (English version) and May 2012 (Bahasa version).

The book came to the attention of JAIS. The book was reviewed and deemed:

  1. Not academic in natures the discussions presented in the Book were merely focused on the orientalist perspective of Islam; and
  2. The author had disregarded authoritative sources that have long been established in discussing religious issues in the Book.

As a result, the book was deemed to be a clear deviation and in direct contravention of the true Islamic precepts. At this juncture, a number of events transpired:

  1. The Deputy Minister of Home Affairs via a Gazette Notification prohibited the continued production and publication of the book;
  2. A warrant was granted (premised upon Section 16 of the Syariah Criminal Offences (Selangor) Enactment2) to JAIS and its employees raided, searched, seized and confiscated 180 copies of the book from Zi Publication’s office; and
  3. The director of Zi Publication was brought to JAIS office to be prosecuted at the Syariah Court.

The court’s decision

Zi Publication filed a judicial review, claiming that the confiscation was in contravention of Articles 10(1) and 8(1) (i.e. restricting the freedom of expression) of the Federal Constitution and the fact that the enactment only allowed for search and not seizure/ confiscation of any evidence. The brief chronology of events are as follow:

  1. The matter was fought all the way to the Federal court, where the court dismissed the application.
  2. The matter was re-pursue, on the grounds that the Federal Court’s decision was only in respect of the legislative power of the State Legislative Assembly in enacting the impugned section, not the constitutionality of the section itself.
  3. The High Court, upon hearing the second judicial review application, dismissed the application. Upon appeal to the Court of Appeal, the matter was remitted back to the High Court for retrial.
  4. In the retrial, the high court noted the act of confiscation i.e. the exercise of the powers as provided for under the Enactment in the course of a criminal investigation is not open for judicial review. The Court of Appeal agreed (on appeal) on what was stated by the High Court.

The court’s rationale

In coming to its decision, the court noted that the words “menggeledah tiap-tiap bahagian dan rumah” include the act of searching evidence and seizing the evidence, if any. The Search Warrant would have not served its very purpose if it did not extend the power to seize any evidence found by the enforcement officers3:

“…the seizure challenged by the appellant in its judicial review application was an act done by the respondents’ officers in the exercise of a function in relation to a criminal investigation for an offence under Act 606. In our view, such an exercise of power in the course of a criminal investigation is not open to review under O 53 of the RHC. To hold otherwise would, to our mind, be exposing the criminal investigative process of all law enforcement agencies in the country to constant judicial review which surely could not have been the intention of Parliament. A balance has to be struck between the right of disgruntled persons such as the appellant, to seek redress in the form of damages for the alleged wrongful seizure of its property and the duty of the investigative agency through its officers to bring wrongdoers to face justice by arresting them and collecting, in the course of the investigation, whatever evidence against them.”

So what does this have to do with AMLA?

Similarly, the court also approved a similar decision made in the High Court case of City Growth Sdn Bhd & Anor v The Government of Malaysia, which concerns the effect of the in the banking accounts of the applicants pursuant to S 50(1) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (‘AMLA’). In that case, the court noted that:

“…s 50(1) of AMLA is part and parcel of the investigation process into an offence under s 4(1) of the AMLA. It appears that in order to facilitate the investigation into the offence of money laundering, the law has provided the public prosecutor with the power to assist the investigating officer. Clearly, s 50(1) of AMLA was enacted to enable the public prosecutor or his Deputy to make an order of seizure of movable properties in the possession of the financial institutions by ordering the financial institutions, not to part, deal in, or otherwise dispose of such property or any part of it until the order is revoked or varied. Thus, by issuing the said orders the deputy public prosecutor was merely exercising a function under AMLA.”

What does this mean?

Simply put:

  1. Evidence has to be seized and preserved by the investigative agency through its officers in  order to allow the prosecutors to have the clearest picture in bringing a charge against an accused;
  2. Prosecutors/ investigative agencies would not be able to function properly if they are constantly being bombarded with the judicial application; and
  3. This does not mean that an aggrieved party has no redress at all in any event, if property seized were without a reasonable cause, an aggrieved party can file a private law write action for damages.

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1.  [2020] MLJU 938.

2. 1995.

3. In relying on the Federal Court’s decision in Empayar Canggih Sdn Bhd v Ketua Pengarah Bahagian Penguatkuasa Kementerian Perdagangan Dalam Negeri Dan Hal Ehwal Pengguna Malaysia & Anor [2018] Supp MLJ 16.

4. [2006] 1 MLJ 581.