In the administration of criminal justice in Malaysia, the role played by law enforcement and prosecution is crucial, and it must ALWAYS be exercised independently and professionally.
In the determination of guilt, it is the role of the independent Judges to determine the guilt or otherwise of the accused after consideration of all relevant evidence, adduced and challenged during a Fair Trial.
However, when the Attorney General/Public Prosecutor suddenly exercises his/her power and decides not to further prosecute or continue with a criminal trial - then the Judge/Court is deprived its role in determining whether the said accused is guilty or not based on a maximum evaluation of all available and relevant evidence. When the AG/PP discontinues - decision to ACQUIT or simply DIS-CHARGE is sadly based on not even on the evaluation of evidence already adduced in court, but other factors as to whether the AG/PP wants to later continue with the case or not... so, an abuse by the PP can mean a criminal may get off scot free - and an acquittal means he/she can never again be charged for the same offence or other offences based on the same facts...THIS MUST CHANGE.
The sudden discontinuance of the criminal prosecution of the sitting Deputy Prime Minister have raised SERIOUS ISSUES - more so, when prosecution had already proven and convinced the Court a prima facie case - for all the 47 charges against Zahid Hamidi. The defence had also called about 15 witnesses. When a prima facie case has been proven, then if the accused manages to raise reasonable doubt for any of the said 47 charges, then reasonably the Court may find the accussed not guilty of the charges where reasonable doubt has been raised.
The controversy led to the referring of the matter to a Parliamentary Committee - but to date, we have heard little - many wonder if the whole 'scandal' may have been swept under the carpet.
Matters of concern also includes:- Why did the LEAD PROSECUTOR suddenly change before the end of the trial? Why did the Attorney General/Public Prosecutor suddenly do so just before he ended his term of office? Worse, when the said former Attorney General/Public Prosecutor was appointed as the Chairman of Amanah Raya Berhad, an entity under the Finance Minister(who also happens to be the Prime Minister Anwar Ibrahim) - was it a 'gift' for what he did?
The NEW Attorney General/Public Prosecutor can at any time re-charge Zahid Hamidi but nothing seems to have happened to date. What is the status of the 'further investigations', one reason used for the discontinuance?
YES - the Public Prosecutor can also ABUSE HIS/HER POWERS - and hence, rightfully there must be a way to prevent such abuse that can have a most detrimental effect on the perception of the administration of justice in Malaysia.
Every decision of Ministers and even the Prime Minister can be subject to JUDICIAL REVIEW where the court makes a determination of whether the decision was rightfully done. Even decisions of JUDGES are subject to REVISION and appeals, where again the decisions are checked to determine whether it was rightfully done or not.
So, now the Malaysian Bar has filed a JUDICIAL REVIEW against the decision of the AG/Public Prosecutor...This will be a case to watch...
The administration of justice in Malaysia is also very important for the foreign investors - how many would want disputes to be resolved in Malaysian courts and in accordance to Malaysian laws? Is there a BIAS in the administration of justice in favour of government linked persons/entities and 'friends'?
Press Release | Judicial Review Filed by the Malaysian Bar over the Attorney General’s Decision to Apply for a Discharge Not Amounting to an Acquittal in the Case Involving Dato’ Seri Zahid Hamidi on 4 September 2023 4 Dec 2023 3:30 pm
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The Malaysian Bar has initiated legal proceedings in the Kuala Lumpur High Court, seeking judicial review over the Attorney General (“AG”)’s decision of 4 September 2023 in applying to the Court for a discharge not amounting to an acquittal (“DNAA”) in the case involving 47 charges against Deputy Prime Minister, Dato’ Seri Ahmad Zahid Hamidi (“Zahid Hamidi”).
Having considered at length the facts and circumstances of Zahid Hamidi’s case, the Malaysian Bar has taken this legal recourse as part of its statutory duty to uphold the cause of justice, uninfluenced by fear or favour. It cannot be disputed that Zahid Hamidi’s trial commenced more than four years ago on 18 November 2019, where a prima facie case was established — with 77 days of trial having been conducted, Zahid Hamidi’s 15th witness giving evidence, and the matter being in the midst of its defence stage on 4 September 2023 — when assertions were made by the AG that further investigation by the Malaysian Anti-Corruption Commission was needed based on several representations made by Zahid Hamidi as at December 2022, three years after the case had commenced. 1,2
It is the Malaysian Bar’s concerted view that the AG’s discretionary powers under Article 145(3) of the Federal Constitution (“FC”) is not absolute and should be restricted in its scope and limit, exercised in a justiciable manner as determined by the Courts3 under its revisionary powers and inherent jurisdiction in accordance with the law.4
Zahid Hamidi’s case holds national and public interest as it involves grave accusations of criminal breach of trust, bribery, and money laundering against an individual in power and authority at the time he was charged — seen in tandem and in the light of the circumstances of the stage of proceedings in the case, vis-à-vis the continuing power he holds at the Executive level as at 4 September 2023. The Malaysian Bar’s position regarding this matter is referred to in our observations made on 7 September 2023.5
In this judicial review filed, the Malaysian Bar seeks, among others, the following reliefs:
(a) A certiorari to quash the AG’s decision of 4 September 2023 in applying for a DNAA in Zahid Hamidi’s case;
(b) A declaration that the AG’s decision of 4 September 2023 is null and void and/or made in excess of the jurisdictions and/or powers under Article 145(3) of the FC and section 254(1) of the Criminal Procedure Code;
(c) A declaration that the AG’s decision of 4 September 2023 is null and void and/or unreasonable and tainted with irrationality;
(d) A mandamus directing the AG to furnish the Malaysian Bar with all information, documentation, reasons, basis, and particulars relied upon in arriving at the decision on 4 September 2023 to apply for a DNAA of Zahid Hamidi, including (but not limited to), the letters of representation issued by or on behalf of Zahid Hamidi;
(e) A mandamus directing the AG to provide the Malaysian Bar at regular intervals with all information, documentation, reasons, basis, and particulars pertaining to the status of the ongoing and/or further investigations on Zahid Hamidi which formed part of the reason for arriving at the decision of the AG to apply for a DNAA, including any decision of the AG to recharge, continue trial, or discontinue investigations against Zahid Hamidi; and
(f) The Malaysian Bar be granted access to all matters and/or documents filed in Court, including court recordings, orders, and judgments.
The unsealed copies of the judicial review application, requisite statement, and supporting affidavit, were served on the AG earlier today.
The Malaysian Bar cannot emphasize enough the importance of a judicial review process — which is specifically designed to challenge decisions, actions, or omissions of public bodies in the event that checks and balances on the Executive and Legislative are required, and/or where the basic structure of our FC is called into question for proper interpretation — in the interest of our democracy.
Karen Cheah Yee Lynn
President
Malaysian Bar
4 December 2023
1 “Prosecution withdraws all 47 charges against Zahid after four-year trial”, The Edge Malaysia, 4 September 2023.
2 “Zahid gets discharge not amounting to acquittal in Yayasan Akalbudi trial”, Malay Mail, 4 September 2023.
3 Sundra Rajoo a/l Nadarajah v Menteri Luar Negeri, Malaysia & Ors [2021] 5 MLJ 209.
4 Dhinesh a/l Tanaphll v Lembaga Pencegahan Jenayah & Ors [2022] 3 MLJ 356.
5 “The
Attorney General’s Chambers’ Media Statement Fails to Provide
Justifiable Reasons to the Public on the Withdrawal of the 47 Charges
against Zahid Hamidi”, Malaysian Bar website, 7 September 2023.
Source: Malaysian Bar Website
Press Release | The Attorney General’s Chambers’ Media Statement Fails to Provide Justifiable Reasons to the Public on the Withdrawal of the 47 Charges against Zahid Hamidi 7 Sep 2023 10:30 pm
The
Malaysian Bar is perturbed over the recent withdrawal by Deputy Public
Prosecutor (“DPP”) Datuk Mohd Dusuki Mokhtar of all 47 charges faced by
Deputy Prime Minister, Dato’ Seri Ahmad Zahid Hamidi (“Zahid Hamidi”),
upon receiving instructions from then-Attorney General (“AG”), Tan Sri
Idrus Harun (“Idrus Harun”), pursuant to Article 145(3) of the Federal
Constitution and section 254 (1) of the Criminal Procedure Code. The
DPP pointed towards representations made by the defence in December
2022, alluding that there is a need for further investigation by the
Malaysian Anti-Corruption Commission (“MACC”).1,2
The Malaysian Bar notes that the first letter of representation sent in by the defence was dated 8 December 2022 and took place more than three years after the case first commenced in the High Court. In addition, this representation letter was presented after the 15th General Election (“GE15”), after the appointment of the Prime Minister on 24 November 2022 and after the complete list of Malaysian Cabinet members was released on 2 December 2022.
It is further observed that on 8 August 2023 — less than a month ago — previous lead DPP Datuk Raja Rozela Raja Toran (“previous lead DPP”) was reported to have requested for an early retirement since 3 April 2023, and therefore, could no longer lead the prosecution for Zahid Hamidi’s trial.3 Idrus Harun was reported to have said at that juncture that the previous lead DPP would be on leave prior to her retirement starting from 30 August 2023. To further put it in context, it is also known that the current Chief Commissioner of MACC’s tenure was extended for another year on 10 May 2023,4 whereas Idrus Harun’s tenure was also extended for another six months from 6 March 2023.5 These dates, development of events, and actors in play, fuel much of the uproar by the public.
What is unpalatable is that Zahid Hamidi’s trial for the 47 charges commenced on 18 November 2019, and about 77 days of trial have elapsed. After 99 prosecution witnesses testified in the trial, the High Court on 24 January 2022 ordered Zahid Hamidi to enter defence on all 47 charges. This essentially means that the High Court had found that a prima facie case has been established by the prosecution, thereby necessitating Zahid Hamidi to enter his defence. This case was at the stage of defence with Zahid Hamidi’s 15th witness giving evidence, when the prosecution applied for a “discharge not amounting to an acquittal” (“DNAA”) on 4 September 2023.
The Malaysian Bar asserts that the Attorney General’s Chambers (“AGC”) has tarnished its own reputation and credibility as the prosecuting party and that of the MACC as the investigating body, when it applied for a DNAA at such a late juncture after a prima facie has already been established by the previous lead DPP.
The recent media statement issued by the AGC dated 5 September 2023 (“Media Statement”)6 was completely devoid of proper justifications as regards why it had requested for a DNAA. With the DNAA granted by the High Court, Zahid Hamidi’s counsel seized the opportunity to push for an outright acquittal instead of a DNAA. Let us be clear and make no mistake about it: the learned High Court Judge had no alternative but to decide on either a DNAA7 or an acquittal. It therefore rings hollow for the AGC to wholly attribute the withdrawal of the case to the High Court and use that as a reason in the Media Statement, instead of providing a detailed explanation.
The High Court Judge in this case had lamented that should the prosecution decide in the near future to not proceed with any further charges, then much precious judicial time would have been wasted and a great amount of taxpayers’ money would also have been wasted. On this note, the Malaysian Bar stresses that the AG must take responsibility and be accountable to the citizens of the country; and should the prosecution decide in the near future to proceed with any further charges, then it should avail itself of the process of “reinstatement of trial after discharge” under section 254A of the Criminal Procedure Code, under which Zahid Hamidi’s trial shall be reinstated and continued as if no such DNAA order had been given.
In the recent past, there have been cases where criminal charges against certain politicians were dropped by the AGC amidst trial, reportedly following “instructions”,8 or as a result of representations.9,10 These cases are classified as “high-profile cases” as they hold national and public interests primarily due to the substantial sums of money allegedly misappropriated by those individuals in positions of power and authority.
Just to add for good measure, the Malaysian Bar expects that good sense and justice will prevail, and that this unhealthy trend will not continue unabated — especially in the light of the ongoing 1MDB case, the ongoing trial which former Prime Minister Dato’ Sri Najib Razak is facing,11 and his wife Datin Seri Rosmah Mansor’s second corruption case where she is facing 12 money laundering charges and five counts of failure to declare her income to the Inland Revenue Board.12
What is abundantly clear to the Malaysian Bar — which has consistently pressured the government of the day — is that there must be real political will to carry out a complete revamp of the structure within the AGC where the roles of the AG and the Public Prosecutor must be separated to create true independence in the exercise of prosecutorial powers vested with the Public Prosecutor, free from any influence of the Executive. The AG can take its advisory role to the government, but the Public Prosecutor acts as the guardian of public interest and must fulfil its functions and duties entrusted with utmost integrity, free from political influence and bias, to maintain public confidence in the Malaysian criminal justice system.
The Malaysian Bar notes that the current Government of the day had, recently in August 2023,13 announced that it will undertake a comprehensive empirical study within a year before finalising the proposed separation of the AG’s Office from the Public Prosecutor’s Office. The Zahid Hamidi’s case has shown all of us that it is increasingly urgent that pivotal changes must take place by 2024 so that our criminal justice system is strengthened to remove prospects and/or appearance of bias in the way politicians are being charged, and in the way charges against them are being withdrawn.
Karen Cheah Yee Lynn
President
Malaysian Bar
7 September 2023
1 “Prosecution withdraws all 47 charges against Zahid after four-year trial”, The Edge Malaysia, 4 September 2023.
2 “Zahid gets discharge not amounting to acquittal in Yayasan Akalbudi trial”, Malay Mail, 4 September 2023.
3 “Peguam Negara jelaskan Raja Rozela mohon bersara awal”, Berita Harian, 8 August 2023.
4 “Azam’s contract as MACC chief extended by 1 year”, Free Malaysia Today, 10 May 2023.
5 “AG Idrus Harun’s contract extended 6 months”, Free Malaysia Today, 3 March 2023.
6 “Kenyataan Media: Keputusan Mahkamah Melepas Tanpa Membebaskan YAB Dato’ Seri Dr. Ahmad Zahid Bin HAMIDI”, Jabatan Peguam Negara (Attorney General’s Chambers), 5 September 2023.
7 “Jong Nam trial: Federal Court strikes out prosecution’s appeal”, New Straits Times, 18 September 2019.
8 “Prosecution applies to grant Ku Nan discharge not amounting to an acquittal”, New Straits Times, 7 December 2020.
9 “Court drops graft charges against Guan Eng, Phang”, Malaysiakini, 3 September 2018.
10 “Conditional discharge for Azeez in graft, money laundering case”, Free Malaysia Today, 23 September 2022.
11 “Najib’s fourth 1MDB-related trial, this one involving IPIC, begins on Monday”, The Edge Malaysia, 2 April 2023.
12 “Rosmah files application to have money laundering, tax evasion charges struck out”, Malay Mail, 7 September 2023.
13 “Separation of AG, Public Prosecutor power: Empirical study within one year, says Azalina”, The Star, 19 August 2023.
See earlier relevant posts:-
Was PM's comments about Zahid Hamidi's case inappropriate? A personal opinion OK - but as PM?
If DPP Raja Rozela Raja Toran continues to prosecute, Zahid Hamidi will likely be convicted and sentenced? Come back and prosecute to the end..
When AG who discontinued Zahid's case gets appointed Chairman of a GLC - A question of public perception?
Judges/Courts confused by 'badly drafted' law - Parliament must CLARIFY whether when Prosecutor discontinues a case, the accussed is to be acquitted or DNAAed as of right? Zahid Hamidi's DNAA??
NGO gesa prosiding penjelasan isu DNAA Zahid disiar langsung(Malaysian Insight)
Live Broadcast/Hansard for all Parliamentary Select Committee (Zahid's DNAA) - A media statement
What happened to Zahid's DNAA Parliamentary Committee? Separation of AG from Public Prosecutor important but the DNAA?
Zahid Hamidi's can always be charged again, the trial reinstated and continued - section 254A CPC? Explaining and concerns?
Zahid Hamidi’s Acquittal by High Court Must be Appealed to the Court of Appeal, and Prosecution Failures Must be Investigated - Reforms Needed to Ensure Independence of Deputy Public Prosecutors
Power of PM(Government) to influence police, prosecutors and Judges? Why ask PM to intervene in cases, when he has no such power?
29 Bribery Charges - mid-trial discontinuance and acquittal - Time to Abolish ACQUITAL safe for after trial/close of prosecution case?
Zahid Hamidi should not have met 'alleged donors'- 'interference with on-going investigation'?
Kasitah Gaddam & Eric Chia - Prosecution's failure to call witnesses - Was it just incompetence OR....?
Separation of Judicial & Legal Services Resolution (25/3/2000)
Use of draconian Sedition Act against movers of Bar Motion after Resolution adopted is wrong?
Malaysian Bar calls on Mohamed Apandi Ali to immediately resign as Attorney General, for the good of Malaysia.. -
建议修改议会常规放行 公民组织促直播扎希DNAA听证会 (Malaysian Insight)
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