PUTRAJAYA (March 30): The Federal Court had on Thursday (March 30) fixed June 27 as the hearing date for the review of the previous apex bench’s decision last year not to grant leave to the Malaysia Competition Commission (MyCC) to reinstate fines on AirAsia Bhd and Malaysian Airline System Bhd (MAS).

The date was confirmed by Muayyad Khairulmaini from Lim Chee Wee Partnership, who appeared for MyCC.

The date was fixed by Federal Court deputy registrar Mazuliana Abdul Rashid following case management.

On Feb 9 last year, a three-member bench led by then Court of Appeal president Tan Sri Rohana Yusuf unanimously dismissed MyCC’s leave to appeal to reimpose a RM10 million fine each on AirAsia and MAS, which had been accused of violating competition laws during their short-lived collaboration in 2012.

“The bench agreed with the respondents (MAS and AirAsia) that this is not an appropriate case for this apex court to grant leave to meet the requisite [requirements] of Section 96 of the Courts of Judicature Act. Hence, we dismiss both applications for leave,” Rohana, who sat with judges Datuk Abdul Rahman Sebli and Datuk Mary Lim Thiam Suan, said back then.

Abdul Rahman was elevated as the chief judge of Sabah and Sarawak earlier this year.

On April 27, 2021, the Court of Appeal overturned a High Court decision upholding the decision of MyCC to impose the fines.

Datuk Hanipah Farikullah, who led the Court of Appeal bench, ruled that MyCC should have abided with the Competition Appeal Tribunal's (CAT) decision to lift the fines, and not filed a judicial review to challenge the CAT's findings.

The appellate court further ruled that MyCC cannot challenge its appellate authority, and that the commission was not considered an aggrieved party under Order 53 Rule 2 to initiate a legal challenge against the CAT.

It was reported that the CAT had allowed appeals by MAS and AirAsia to lift the fines, while MyCC filed a judicial review in the High Court, where it reversed the CAT's decision.

Some lawyers had opined the Federal Court’s decision could be wrong and a missed opportunity for MyCC to review the CAT’s decision.

As a result, MyCC filed an application to review the previous bench’s decision last October.

A review can be held under Rule 137 of the Federal Court Rules 1995 that stipulates the apex court’s inherent jurisdiction to review the decision of an earlier bench to prevent injustice, or to prevent an abuse of the process of the court.

This is similar to the review of former prime minister Datuk Seri Najib Razak’s conviction and sentence in the SRC International Sdn Bhd case - 12 years’ jail and a RM210 million fine - upheld by the Federal Court on Aug 23, where the decision is due on Friday. 

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