Selective Prosecution or Selective Non-Prosecution in Malaysia, is unfortunately something many Malaysians believe happens - and, it was believed that the incumbent Prime Minister and the government had a say on who is charged and prosecuted and who is not in Malaysia. TRUE? FALSE?
During the reign of the Barisan Nasional, many believe that there were not many charges levied at UMNO or BN leaders or their 'friends'
All things changed, after Pakatan Harapan came into power after GE14 - and we saw so many investigations, charges and trial of those, who once were previously considered 'UNTOUCHABLES'. The people were happy with this new development - as finally, no one is above the law.
Malaysians want our law enforcement, prosecution and judges to be truly independent - and will no longer be 'influenced' by the sitting Prime Minister, Ministers or the government.
Anyway, after what many considered 'odd' discontinuance of criminal proceedings against Zahid Hamidi (the UMNO President, and Anwar's Deputy Prime Minister), which naturally led to a DNAA(Discharge Not Amounting to An Acquittal), many wondered why the prosecution did so, more so during Zahid's defence stage, after the prosecution had successfully proved prima facie case for all 47 charges.
Our law gives the power to the Attorney General/Public Prosecutor to decide not to proceed with a criminal trial at any stage of the trial. Currently, there seems to be no 'check and balance' mechanisms on the powers of the AG/PP - should there be a right to JUDICIAL REVIEW decisions of the Attorney General/Public Prosecutor? Hence, court can review and determine the correctness or reasonability of these prosecution's decisions?
Let's not stop with the prosecution, what about the police and law enforcement - many are frustrated when their reports end up with 'No Further Action'(NFA) - should there be a right to appeal or a right to Judicial Review of police decisions/actions?
If prosecution stops, Judges now have no power to order prosecution to continue ...?? The best a judge can do is DNAA
Now, if the prosecution does not want to proceed, the Judge have no choice but to give a DNAA. They cannot ask prosecution to continue...
The judge also do have the power to acquit when this happens, but despite application by Zahid's lawyers for an ACQUITAL - the judge only gave a DNAA. I believe that this was RIGHT > A judge, in my opinion, must never ACQUIT anyone except after a FULL TRIAL and the judge had the opportunity to consider all evidence and decide on guilt or 'innocence'.
When prosecution decides not to proceed further for whatever reasons, an acquittal not based on evaluation of all evidence is simply wrong.
What is DNAA?
When a person is CHARGED in court, the trial starts and continues.
When a person is DISCHARGED, what it means is that person is no longer facing a criminal charge > hence putting himself/herself at the same footing of all others. There is NO CHARGE hanging over his/her head. Everyone is in that position, as we all can always be charged if we commit a crime, and the prosecution is confident that they will succeed in convincing the Judge that one is GUILTY beyond a reasonable doubt. An ACQUITTAL, on the other hand is a GUARANTEE that one can never ever be charged for the same offence, or even similar offences based on the same facts - that is why it is unjust to simply give an acquittal simply because the prosecution decided to discontinue a trial, or even if the current prosecutor says he/she has no intention of re-charging in the future >> things may change with a new prosecutor in the future, the obtaining of NEW evidence later that will be enough to prove GUILT.
Why do Prosecution STOP proceeding with a criminal trial?
Some reasons are:- (a) In mid-trial, the Prosecution is of the opinion that they no longer have sufficient evidence to prove guilt beyond reasonable doubt, and if they simply continue with the trial, there is RISK that the GUILTY may be acquitted. How can this happen - maybe some 'material evidence' disappeared - maybe a witness suddenly changed their testimony or 'disappeared', maybe, they discovered evidence that the person charged with a crime like murder, rape, etc was a different person not the accused or the alleged victim had lied or made a mistake in identification of the accused.
Remember the former spy's case, where a MACC officer replaced the monies with counterfeits - see Former Spy Case - MACC officer stole monies from evidence, and replaced with counterfites - jail 3 years only? . Now, these monies were yet to be tendered as evidence in court, and without it, will the prosecution succeed? in that case, the High Court erred in acquitting the spy - read High Court’s Acquittal of former spy chief, overturning the DNAA ordered by another High Court undermines Justice and raises questions - MACC was still gathering evidence, but now cannot re-charge because of the Acquittal (MADPET)
In the Zahid Hamidi's case, the Prosecution already proved PRIMA FACIE case, which means that Zahid Hamidi will be CONVICTED unless Zahid Hamidi, during the Defence Case, is able to raise reasonable doubt or rebut evidence before the court. This also means that Zahid Hamidi's lawyers had failed during cross examination and in other ways during Prosecution's case to raise reasonable doubt that he is not guilty, or rebut sufficient material evidence submitted that would have resulted that Judge not deciding that prosecution had proven the Prima Facie case. - see Zahid Hamidi's can always be charged again, the trial reinstated and continued - section 254A CPC? Explaining and concerns? So, why did the Prosecution discontinue criminal proceedings at this stage?
Our law states that at any later time with regard a person who was DNAAed, the prosecution can re-charge Zahid Hamidi for the same 47 offences, and the trial will continue where it ended. Of course, the prosecution also may choose not to charge Zahid again.
PRIME MINISTER ANWAR IBRAHIM SHOULD NEVER HAVE 'INTERFERED' by commenting about possible interference in the administration of justice - OR EVEN SUGGESTED anything ... Anwar Ibrahim personally can express his personal view, but not as Prime Minister, more so when it a case involving Zahid, the DPM, and whose party is part of Anwar's 'UNITY' government.
Anwar Ibrahim's position as reported on 6/9/2023 was good - Prime Minister Anwar Ibrahim has denied having a hand in the court’s decision to grant his deputy, Ahmad Zahid Hamidi, a discharge not amounting to an acquittal (DNAA) in his Yayasan Akalbudi case. “This is the attorney-general’s decision. I did not interfere,” Bernama quoted him as saying.
BUT, in yesterday's(15/9/2023) media report, the Prime Minister's comments are of concern. - the charges against Ahmad Zahid Hamidi were "questionable" and not carried out professionally. "Was it 47? Every cheque is a charge. So the charge is questionable. Every cheque issued is a charge by itself, which does not necessarily seem to be professionally done,"
Response:- There is nothing wrong with the 47 charges even if one charge refers to one cheque. Normally, even if it was 1 transaction, one may be facing 2 or more charges > WHY? Remember that the prosecution have to prove every charge beyond reasonable doubt - which is not easy, and if ONE transaction breaks several laws, they will be facing several charges for the one transaction. If there were 10 different money transaction, it is always best to have at least 10 charges. If there is only ONE Charge for all the different 10 transactions, what happens if one or several transactions is not proven...Hence, Anwar's comment about 'questionable' or not professionally done is without basis. At the end of the day, it is the prosecution that decides how to frame the charges... The accused(Zahid) could have challenged the charges, but he did not. Remember, Muhyiddin just manage to quash 4 Charges...
Anwar also repeated a claim by Zahid that the charges had been brought against him in 2019 because he refused to fulfill a demand by then prime minister Dr Mahathir Mohamad to dissolve Umno. "When was the charge preferred? During that time, Mahathir was prime minister. When? A week after he called up this president of this nationalist party (Umno), which is a member of my coalition, and told him (Zahid), 'you dissolve your party and join my party',"
Response - So, Anwar now believes Zahid? Remember, he is talking about Mahathir, when he was the Pakatan Harapan Prime Minister, and Anwar was then a key leader of PH. Even if Mahathir asked Zahid to dissolve UMNO - it is something not even a President alone can do. In any event, NO Prime Minister really can get the Public Prosecutor to charge anyone in court, or discontinue any criminal proceedings.
But, then all that is now totally irrelevant because after Zahid was charged, prosecution successfully proved all the elements of the charge - a prima facie case to the satisfaction of the High Court judge, that ordered Zahid to enter his defence.
Hence, no one can suggest that charging of Zahid was done wrongly, after the fact that Prosecution successfully proved prima facie case. It is absurd to question the independence or the professionalism of the High Court Judge, the prosecution or even the law enforcement.
Further, it was an open trial - and many of the evidence tendered was reported in the media.
Hence, in my opinion, it was wrong for a Prime Minister to say such things - which may also promote the perception that law enforcement, prosecution and even the judiciary is not independent, and will do what the Prime Minister or the government will tell them to do.
If the media report was wrong, Prime Minister Anwar Ibrahim must speedily clarify matters to prevent confusion.
Anwar alleges the existence of a document - a "leaked document", which purportedly
showed that members of the prosecution had opposed the charges against
Zahid. First, how did Anwar have access to the 'leaked document'? Was it a confidential document? When and how did he have access to it - why did he not immediately report it? Why did he not disclose the 'leaked document' to the media and public?
How does prosecution decide on charging anyone - the authority lies with one person, according to the Federal Constitution, and law - it is only the Attorney General/Public Prosecutor.
Anyway, when Zahid was charged - no one, not even Zahid or Anwar, raised this issue before. 'Selective Prosecution' or 'Selective Non-Prosecution' is discriminatory and against the principle of equality, but the ONLY RELEVANT question is whether he/she committed the crime alleged, and whether the Court decided guilt beyond reasonable doubt.
But, as mentioned, the fact that prosecution already proved prima facie case for all 47 charges...it is IRRELEVANT. [Remember, in another case, prosecution failed to prove prima facie case, and Zahid was acquitted without having to call his Defence - but that is now on appeal to determine whether that High Court Judges erred or not]
Make police reports if needed...
186 Obstructing public servant in discharge of his public functions
Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment for a term which may extend to two years or with fine which may extend to ten thousand ringgit or with both.
Will there now be another defamation suit? Did our Prime Minister interfere with the administration of justice? Did the Prime Minister LIE? Was what he said to the media based on HEARSAY or actual evidence? Questions to be considered.
Will action be taken against law enforcement officers, and prosecutors if the ABUSED their powers?
One needed REFORM is to separate the Public Prosecutor from the Attorney General - to ensure that Public Prosecutor is INDEPENDENT - see Bar Resolution on this matter -Malaysian Bar calls on Mohamed Apandi Ali to immediately resign as Attorney General, for the good of Malaysia..
Anwar says 47 charges against Zahid 'questionable'
The prime minister also echoes his deputy's claim that the charges against him stemmed from his refusal to comply with Dr Mahathir Mohamad's request to dissolve Umno.
Prime Minister Anwar Ibrahim has come to the defence of his deputy over the recent decision by the government's prosecution team to halt the latter's trial on 47 corruption charges.
Anwar, who previously denied interfering in the decision while saying it was within the powers of the attorney-general, added that the charges against Ahmad Zahid Hamidi were "questionable" and not carried out professionally.
"Was it 47? Every cheque is a charge. So the charge is questionable. Every cheque issued is a charge by itself, which does not necessarily seem to be professionally done," he said when asked about the dropped graft charges during a session at the annual Milken Institute Asia Summit in Singapore.
Anwar also repeated a claim by Zahid that the charges had been brought against him in 2019 because he refused to fulfil a demand by then prime minister Dr Mahathir Mohamad to dissolve Umno.
"When was the charge preferred? During that time, Mahathir was prime minister. When? A week after he called up this president of this nationalist party (Umno), which is a member of my coalition, and told him (Zahid), 'you dissolve your party and join my party'," he said.
Anwar also cited claims of a "leaked document", which purportedly showed that members of the prosecution had opposed the charges against Zahid.
Still, Anwar said he had no role in the discharge not amounting to acquittal, or DNAA, that was granted to Zahid.
Zahid, the Umno president, was crucial in committing the support of his 30 Barisan Nasional MPs to Anwar's government in the aftermath of the 15th general election.
He was given the DNAA on Sept 4 after deputy public prosecutor Mohd Dusuki Mokhtar informed the judge of the request by the Attorney-General's Chambers (AGC) to discontinue the case.
The decision sparked widespread outrage, with the AGC saying the judge had decided based on the strong reasons it submitted to the court.
"In reaching the decision, the judge stated that the reasons submitted by the prosecution were cogent," it said, responding to statements describing the decision as immoral.- Malaysia Now, 15/9/2023
I had nothing to do with Zahid’s DNAA, says Anwar
Prime Minister Anwar Ibrahim says the decision was made by the attorney-general.
PETALING JAYA: Prime Minister Anwar Ibrahim has denied having a hand in the court’s decision to grant his deputy, Ahmad Zahid Hamidi, a discharge not amounting to an acquittal (DNAA) in his Yayasan Akalbudi case.
“This is the attorney-general’s decision. I did not interfere,” Bernama quoted him as saying.
Earlier today, former prime minister Muhyiddin Yassin said Anwar must shoulder full responsibility for the “damage to the justice system (in the country)”.
This evening, the Attorney-General’s Chambers (AGC) defended its highly criticised decision to apply for a DNAA, saying the reasons presented before the High Court were deemed “cogent” and accepted by Justice Collin Lawrence Sequerah.
Zahid was yesterday granted a DNAA on all 47 of his corruption, criminal breach of trust (CBT) and money laundering charges.
He had been accused of embezzling millions of ringgit from his foundation, Yayasan Akalbudi, and accepting bribes for various projects during his tenure as the home minister between 2013 and 2018.
The decision, however, drew brickbats, with activists, party leaders from the unity government as well as the opposition demanding an explanation from the AG.
Separately, home minister Saifuddin Nasution Ismail hit out at the opposition’s inconsistent stand citing how Perikatan Nasional is accusing Anwar of abuse of power.
He said the opposition seemed to only consider as such when it involved their rivals but were silent when PN leaders were acquitted, Bernama reported him as saying.
He was referring to the High Court decision on Aug 15 to allow an application by Muhyiddin to strike out the four charges of abusing his position to obtain bribes totalling RM232.5 million for Bersatu.
He said both Muhyiddin and Zahid were represented by the same lawyer, Hisyam Teh Poh Teik, but when the Umno president was granted a DNAA, they claimed Anwar had a hand in it.
“Look at how inconsistent they (the opposition) are. When it’s their people who are freed, it’s okay, but if it’s their enemy (government leaders), Anwar is to blame. It is as if everything is controlled by Anwar.” - FMT, 6/9/2023
Muhyiddin succeeds in having abuse of power charges dropped, court rules them defective
KUALA LUMPUR, Aug 15 — Former prime minister Tan Sri Muhyiddin Yassin has succeeded in having four abuse of power charges against him quashed following a High Court decision today.
In delivering the court's decision, High Court judge Datuk Muhammad Jamil Hussin said the aforementioned charges accusing Muhyiddin of allegedly using his position to obtain gratification amounting to RM232.5 million for Parti Pribumi Bersatu Malaysia failed to disclose any offence details.
"The four charges did not disclose an offence under Section 23(1) of the Malaysian Anti-Corruption Commission (MACC) Act and Section 154 of the Criminal Procedure Code (CPC) which calls for an extraordinary circumstance compelling me to use the court's inherent powers.
“This is to prevent an abuse of the court process. I am therefore allowing for the four charges to be struck out and the applicant is acquitted and released,” he said.
With the four charges struck out, Muhyiddin has three remaining criminal charges under the Anti-Money Laundering and Anti-Terrorism Financing and Proceeds of Unlawful Activities Act that are pending at the Sessions Court.
In his decision, Muhammad Jamil said the court disagreed with the prosecutors' argument that the particulars of how the offence was committed were not required to be disclosed in the charge but could later be proven through court testimonies.
"This will surely bring about injustice to the applicant who is uninformed of the true nature of the offence committed and therefore incapacitating them of an effective defence before trial commences.
"The unmentioned particulars render the charges vague and the applicant confused since he has no idea what matter concerning his decision or action he had taken (in committing the offence).
"The applicant should not be allowed to speculate and prejudiced when he is not informed of their true nature," he said.
Ruling in favour of Muhyiddin, the judge said the former cannot be forced to undergo a criminal proceeding that was in clear violation of the law, since this will constitute an abuse of the court process should the trial be allowed to continue under the defective charges.
He said Muhyiddin's right to a fair trial under Article 5 of the Federal Constitution was also violated in the process due to the defective charges filed against him.
When met outside the court, lawyer Datuk Hisyam Teh Poh Teik said the charges against his client were seriously defective and expressed gratitude to His Lordship for accepting their arguments.
He also said the three money laundering charges would also not stand on their own and would be dismissed as well since they were dependent on the predicate offences which were struck out today.
Last April 18, Muhyiddin filed a notice of motion to request that he be acquitted and discharged of all four charges brought against him, alleging the charges lacked particulars as to how he had abused his position or the Prime Minister’s Office for the purpose of gratification.
Based on the four charges, Muhyiddin as
prime minister of Malaysia and Parti Pribumi Bersatu Malaysia president
is alleged to have used his position to receive bribes amounting to
RM232.5 million from three companies namely Bukhary Equity Sdn Bhd,
Nepturis Sdn Bhd and Mamfor Sdn Bhd as well as Datuk Azman Yusoff for
the party.- Malay Mail, 15/8/2023
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