KUALA LUMPUR, Jan 11 — The Attorney General’s Chambers today argued in the High Court here that the Malaysian Bar’s bid to challenge the public prosecutor’s application for a discharge not amounting to an acquittal (DNAA) in Deputy Prime Minister Datuk Seri Zahid Hamidi’s Yayasan Akalbudi trial, should not be allowed to go through.
Senior federal counsel Ahmad Hanir Hambaly @ Arwi claimed that despite seeking a judicial review of the prosecutor’s decision, the Malaysian Bar has not produced any compelling prima facie evidence to back its assertions of irrationality.
“The Federal Court in Sundra Rajoo a/l Nadarajah v Menteri Luar Negeri (2021) developed a two-steps threshold test required to be satisfied at the leave stage, that is to show the court their grounds for judicial review and demonstrate compelling prima facie evidence that the decision of the AG falls within those grounds,” he said.
Ahmad Hanir also noted that the Malaysian Bar had contended that the prosecutor’s decision was ultra vires, or beyond the powers of the Federal Constitution and the Criminal Procedure Code (CPC).
He said this is incorrect.
“Article 145(3) of the Federal Constitution and Section 254(1) of the CPC allows for the AG/Public Prosecutor to apply for discharge before the judgment of the court.
“Yes, the application was made after prima facie and defence have been called but both provisions of law do not prescribe a time limit as long as it is before a judgment made by court,” he said.
In Malaysia, the attorney general (AG) is also the public prosecutor and is granted discretionary prosecutorial powers.
Lawyer Datuk Ambiga Sreenevasan represented the Malaysian Bar.
She informed the court that the Bar, a statutory body representing all practising lawyers in peninsular Malaysia, intends to file an application under Section 84 of the Courts of Judicature Act.
Through the application, Ambiga said the Malaysian Bar wishes to refer constitutional questions concerning the prosecutor’s decision to apply for DNAA in Ahmad Zahid’s case to the Federal Court.
However, she did not reveal how many questions of law were to be posed but asked for two weeks from the court to file the application.
Lawyers Datuk Hisyam Teh Poh Teik and Guok Ngek Seong appeared for Ahmad Zahid.
In response to Ambiga, both Ahmad Hanir and Hisyam informed the court that they intend to object to the Bar’s reference bid.
After hearing submissions from all parties, judge Datuk Amarjeet Singh allowed the Malaysian Bar to file its applications by January 26 and set February 6 for case management.
Last month, Bar president Karen Cheah Yee Lynn said the statutory body contends that the scope of the AG’s power under Article 145(3) of the Federal Constitution is not absolute, should be restricted in its scope and limit, exercised in a justiciable manner.
Article 145(3) of the Constitution confers power to the AG to institute, conduct or discontinue any proceedings for an offence.
Cheah said the Bar is seeking a court order to quash the AG’s decision last September 4 on Ahmad Zahid’s application for a DNAA.
She said the Bar also wants the High Court to declare that the AG’s decision is null and void, and that it overstepped its authority under Article 145(3) of the constitution and Section 254(1) of the CPC.
Last September, the prosecution decided to discontinue and drop the Yayasan Akalbudi trial against Ahmad Zahid — which resulted in the High Court granting a DNAA on Ahmad Zahid for all 47 charges he faced.
At that time, deputy public prosecutor Datuk Mohd Dusuki Mokhtar said further investigations on Ahmad Zahid’s case had to be carried out, following the representations from the accused to the AG to ask for all 47 charges to be reviewed.
Trial judge Datuk Collin Lawrence Sequerah said that the prosecution had “given cogent reasons” for seeking the DNAA.
Ahmad Zahid, who is also Umno president and Barisan Nasional chairman, was on trial on 47 charges, namely, 12 counts of criminal breach of trust in relation to over RM31 million of his charitable organisation Yayasan Akalbudi’s funds, 27 counts of money laundering, and eight counts of bribery charges of over RM21.25 million in alleged bribes.