PUTRAJAYA (Aug 11): The Court of Appeal today dismissed a bid by former premier Datuk Seri Najib Razak (pictured) and his son Datuk Mohd Nazifuddin Najib to refer constitutional questions in relation to their Inland Revenue Board (IRB) appeals over their tax arrears of RM1.69 billion and RM37.6 million respectively to the Federal Court.
A three-member bench led by apellate judge Datuk Abdul Karim Abdul Jalil dismissed the proposal made by Najib's senior counsel, Tan Sri Muhammad Shafee Abdullah, who argued that the IRB's imposition of a summary judgement on his clients without hearing their defence was akin to "tying their hands and legs" and this violated their rights.
Shafee added that this violated the former premier and his son's rights under Article 5 (regarding liberty of a person) and Article 8 (equal protection of the law) in relation to Article 121 of the Federal Constitution.
Article 121 refers to the judicial power of the federation referring to the court's power to hear an application.
Justice Abdul Karim who sat with Justice Datuk Vazeer Alam Mydin Meera and Justice Datuk Supang Lian unanimously dismissed the suggestion made by Shafee to pose five questions of law to be decided by the apex court, like in the landmark decision of Semenyih Jaya Sdn Bhd land tax case.
"It is our pleasure in having you Shafee in bringing up a very interesting point for our consideration.
"However, we are not with you in bringing this matter or issue directly to the Federal Court and will hear the appeal," the senior judge said.
Like in the Semenyih Jaya case, the questions of law were referred directly from the Court of Appeal to the Federal Court, before the appeal was heard back at the apellate court.
Shafee then suggested another hearing day to be fixed as his submissions on the issue would take the whole day.
Following that, Justice Abdul Karim, after consulting with two other judges, fixed Sept 9 to hear the full extent of the appeal.
Najib was watching the proceedings, which were heard via Zoom.
Earlier, IRB's senior federal counsel Dr Hazlina Hussain had objected in referring the five questions to the apex court by saying that the issue raised on Section 106 (3) of the Income Tax Act 1967 had already been decided.
Hazlina said the High Court judges themselves did not find that the IRB had usurped the powers of the judiciary as claimed, as Najib and Nazifuddin could also bring the matter to the Special Commissioners of Income Tax (SCIT).
"This case is different from the Semenyih Jaya case as the assessment of the land tax was considered final but this is not so as the appellants can appear before the SCIT," she added.
Shafee also applied for a stay of proceedings as Najib and Nazifuddin are also faced with bankruptcy proceedings at the High Court, but Justice Abdul Karim said the bench cannot allow a stay.
It was previously reported that a summary judgement was entered on the former premier at the High Court by Justice Datuk Ahmad Bache on July 22 last year, where he is required to pay RM1.69 billion in unpaid income tax.
Justice Ahmad on June 14 this year also dismissed Najib's application for a stay in paying the amount.
The Malaysian government through the IRB also filed bankruptcy proceedings against the former premier at the High Court in April this year, just as his appeal on the SRC International Sdn Bhd conviction was being heard.
Najib had been sentenced to 12 years' jail and fined RM210 million after being convicted of abuse of power, criminal breach of trust and money laundering in relation to SRC International, formerly a subsidiary of 1Malaysia Development Bhd.
Similarly, another High Court judge Justice Datuk Ahmad Zaidi Ibrahim on July 6 last year also entered summary judgement on Najib's son from his first marriage.
Justice Ahmad Zaidi was earlier this year elevated to the Court of Appeal.
The IRB is also instituting bankruptcy proceedings against Nazifuddin in May this year.
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