- The
Court of Appeal unanimously ruled that the Malaysian Bar can proceed
with its challenge against the AG’s 2023 decision to seek a discharge
not amounting to an acquittal (DNAA) for Datuk Seri Ahmad Zahid Hamidi
in his Yayasan Akalbudi trial.
- The court found that Zahid’s DNAA
was an “appropriate, rare and exceptional” case for the challenge to
proceed, given several factors, including that 99 prosecution witnesses
and 15 defence witnesses had already testified.
- The Malaysian Bar’s judicial review will now be heard by the High Court.
- The
Malaysian Bar will ask the High Court to defer its decision on Zahid’s
acquittal application until the judicial review has been heard.
PUTRAJAYA,
May 7 — The Malaysian Bar today won its appeal to begin its court
challenge against the Attorney General’s 2023 decision to apply for a
discharge not amounting to an acquittal (DNAA) against Datuk Seri Ahmad
Zahid Hamidi’s 47 charges in the Yayasan Akalbudi corruption trial.
Datuk
Faizah Jamaludin, who chaired a three-judge panel at the Court of
Appeal, said the panel unanimously decided that the Malaysian Bar’s
court challenge could proceed to be heard by the High Court.
“Leave
is granted to the Appellant to commence judicial review against the
Attorney General’s impugned decision. The matter is remitted to the High
Court for substantive hearing of the judicial review,” she said,
referring to the Malaysian Bar as the appellant.
The other two judges on the panel were Datuk Lim Hock Leng and Datuk Nadzarin Wok Nordin.
The
Malaysian Bar had on December 2, 2023 filed its court challenge via a
judicial review application, but the High Court on June 27, 2024 decided
not to grant leave for the case to be heard.



Lawyer
Datuk Ambiga Sreenevasan, who represented the Malaysian Bar, speaks to
reporters at the Palace of Justice in Putrajaya, May 7, 2026. — Picture
by Yusof Isa
Since this is a judicial review
case, the Malaysian Bar had to get the court’s leave or court’s
permission first in order for the case to be heard.
The Malaysian Bar on July 23, 2024 appealed against the High Court’s decision, and this is the appeal it won today.
The
High Court will now hear the Malaysian Bar’s challenge against the AG’s
decision to get a DNAA in Zahid’s case, unless the AG decides to file
an appeal on today’s decision.
What the Court of Appeal decided
When
reading out excerpts of the court’s judgment today, Faizah noted that
the Malaysian Bar’s appeal today involves an issue of constitutional and
public importance, specifically on the threshold or the minimum
requirement in order to get leave to challenge the AG’s discretion in
prosecutions under the Federal Constitution’s Article 145(3).
Under Article 145(3), the AG has the power and discretion to “discontinue” any criminal proceedings or to drop prosecutions.
Faizah
stressed that the Court of Appeal’s decision today is not on the merits
of the criminal charges, “does not determine the guilt of or innocence
of” anyone, and is also not on the AG’s motives and conduct.
Instead,
she said the only question is whether the Malaysian Bar has met the
threshold for leave to start its court challenge against the AG’s
September 2023 decision to ask for a DNAA in Zahid’s case.
She
made it clear that a DNAA is “not a finding of innocence or guilt”, but a
“procedural order” that the courts make in criminal proceedings.
Faizah
listed five legal issues that the Court of Appeal had examined in
coming to its decision today, including whether the Malaysian Bar had
fulfilled the test to be able to start its court challenge.
She
said the Federal Court’s 2021 decision in the Sundra Rajoo case had
clarified that the AG’s prosecutorial discretion under Article 145(3) is
wide but is not “absolute or unfettered”, and that it had ruled that
the AG’s prosecutorial discretion could be subjected to judicial review
in “appropriate, rare and exceptional” situations.
She noted the
Federal Court had made it clear that all public powers have legal limits
and that the AG’s constitutional status does not mean that the courts
could not review his prosecutorial discretion, although a higher
standard of scrutiny would apply.
The Court of Appeal today
decided that the test to get leave for a judicial review against the
AG’s prosecutorial discretion is the same test that applies to other
judicial review cases.
This test is whether there is an arguable case that is not frivolous.
But
when the judicial review is about how the AG exercised his
prosecutorial discretion, the Court of Appeal said the test for getting
leave must also be applied with “discipline, caution and restraint” with
considerations of four factors.
These four factors are the AG’s
constitutional status; the presumption that the AG’s exercise of his
prosecutorial discretion was legal; the doctrine of separation of
powers; and the principle that judicial review over prosecutorial
discretion is limited to “appropriate, rare and exceptional” cases.
Faizah
said the presumption of legality of the AG’s prosecutorial discretion
cannot be an “absolute bar” or completely shut out leave for judicial
review, if such a court challenge is supported by identifiable and
serious matters.
Unlike the AG’s decision to charge an individual
which can be challenged within the court process and trials, she noted
that the decision to discontinue or drop a prosecution “may have a final
practical effect” and remove it from the courts.
“In such a case,
a judicial review may be the only practical means by which the legality
or rationality of the AG’s decision-making process can be examined,”
she said.
Datuk
Faizah Jamaludin, who chaired a three-judge panel at the Court of
Appeal, said the panel unanimously decided that the Malaysian Bar’s
court challenge could proceed to be heard by the High Court. — Picture
by Raymond Manuel
She said the Malaysian Bar’s
court challenge is focused on whether the AG’s decision-making process
when deciding to discontinue the prosecution against Zahid was legal and
rational, including whether relevant or irrelevant factors were
considered, and whether the AG’s decision at such a “late stage” in the
trial was justified.
She said the Court of Appeal concluded that
the Malaysian Bar has crossed the threshold or fulfilled the test to get
leave for judicial review of the AG’s prosecutorial discretion, and
that the Bar has an arguable case that is not “frivolous”.
“This
case is appropriate, rare and exceptional, because several factors
converge: the seriousness of the charges, the public interest in
corruption prosecutions, the prima facie finding after a maximum
evaluation, the calling of the defence, the extent of proceedings
already undertaken, including 99 prosecution witnesses over 53 days of
trial, and 15 defence witnesses, the timing and number of
representations and the practical finality of the discontinuance,” the
judge said, referring to Zahid’s Yayasan Akalbudi case.
“Accordingly,
this is our findings for issue III, we therefore held the application
is not frivolous and discloses serious public law issues that should be
heard at the substantive stage,” she said.
Lawyer
Datuk Hisyam Teh Poh Teik, who represented Datuk Seri Ahmad Zahid
Hamidi, speaks to reporters at the Palace of Justice in Putrajaya, May
7, 2026. — Picture by Yusof Isa
For the fifth
and final legal issue, the Court of Appeal ruled that the Malaysian
Bar’s judicial review bid is not a “collateral attack” on the criminal
courts’ order to grant a DNAA for all 47 charges against Zahid, as the
Bar is instead focused on the AG’s decision to seek a DNAA.
Faizah
explained that when the AG discontinues a prosecution, the default
result would be a DNAA, unless the court decides to acquit the accused
person.
This is based on the Criminal Procedure Code’s Section 254.
Citing
Section 254, she said the criminal court cannot compel the AG to
continue a criminal trial once the AG has decided to discontinue the
prosecution, and that means the decision to continue or discontinue the
prosecution would still be the AG’s constitutional responsibility under
Article 145(3).
In the Yayasan Akalbudi case, she said the High
Court in September 2023 had considered the choice of whether to grant a
DNAA as sought by the prosecution or an acquittal as sought by Zahid,
and that it did not make a finding on whether the AG’s decision to
discontinue the prosecution was legal, rational or reasonable.
Ultimately, the Court of Appeal concluded that the Malaysian Bar should be given leave to have its court challenge heard.
Zahid’s acquittal application in courts next week
The
Court of Appeal’s decision today is important as it could potentially
affect when the High Court decides on Zahid’s separate application for
acquittal in the Yayasan Akalbudi case.
Zahid had on January 28
applied to be acquitted and the Attorney General’s Chambers has said it
has no objections to this application.
The High Court had on
February 24 said it would wait for the Court of Appeal’s decision to
prevent the Malaysian Bar’s appeal from becoming academic, but had also
later scheduled May 14 (next Thursday) to decide on Zahid’s acquittal
application.
Unlike a DNAA which temporarily frees an accused from
charges and the same charges can be brought again, an acquittal would
mean the prosecution cannot file the same charges in the future.
Lawyer
Datuk Ambiga Sreenevasan, who represented the Malaysian Bar, told
reporters that the Bar also has a separate court challenge against the
AG’s January 8, 2026 decision to classify Zahid’s Yayasan Akalbudi case
as “NFA” (No Further Action).
As for the High Court’s scheduled
decision next week on Zahid’s acquittal bid, Ambiga said the Malaysian
Bar would ask for the decision to be deferred until the courts hear the
Malaysian Bar’s two separate judicial review applications against the
AG’s DNAA and NFA decisions: “We will be asking for it to either be
adjourned or stayed pending the hearing of our substantive application
for judicial review.”
Zahid’s lawyer Datuk Hisyam Teh Poh Teik
said the legal team would seek his client’s instructions about next
week’s acquittal matter, which he confirmed is scheduled for decision at
the High Court: “We will take further instructions on that as well and
will discuss among ourselves as to what do on the 14th of May.”
Hisyam
said the legal team would study the judgment today in greater detail
and move on to the next stage of the judicial review hearing at the High
Court.
He noted that the Court of Appeal today did not rule on
whether anyone was guilty or not: “In other words, this is only at the
leave stage, and what is important is the court emphasises that as far
as the leave stage is concerned, the threshold is low, so long as the
grounds canvassed are not frivolous or vexatious, leave will be heard.”
When
asked if an appeal would be filed against the court’s decision today,
Hisyam said this would have to be discussed with the AG: “We will
discuss among ourselves, the legal team, we will take further
instructions again, and we will also liaise with the Chamber’s of the
AG.”