PUTRAJAYA, Oct 8 — The Federal Court today allowed Datuk Seri Dr Ahmad Zahid Hamidi and the Attorney-General (AG) leave to appeal against the Court of Appeal’s decision allowing the Malaysian Bar to commence a judicial review challenging the prosecution’s decision to discontinue the Yayasan Akalbudi corruption case.

A three-man bench comprising Chief Judge of Malaya Datuk Seri Hashim Hamzah and Federal Court judges Datuk Nordin Hassan and Datuk Che Mohd Ruzima Ghazali held that the case raises novel constitutional issues of public importance that require clarification and final determination by the Federal Court.

Delivering the unanimous decision, Justice Hashim said the case concerns the threshold for granting leave to commence a judicial review when the AG’s prosecutorial discretion under Article 145 (3) of the Federal Constitution is being challenged.

He said the High Court had applied a two-step threshold based on its interpretation of the Federal Court’s decision in the Sundra Rajoo case, while the Court of Appeal, on the other hand, applied a single-leave test.

“And the test must be applied with greater discipline, caution, and restraint when it involves the AG’s prosecutorial power under Article 145 (3),” he added.

Justice Hashim said both Ahmad Zahid and the AG had met the threshold requirement under Sections 96 (a) and 96 (b) of the Courts of Judicature Act 1964 for leave to be granted.

He said the court allowed four questions of law proposed by the Deputy Prime Minister and dismissed one, while both questions of law proposed by the AG were allowed.

One of the questions is whether, in cases involving challenges to a decision by the Public Prosecutor in exercising his powers under Article 145 (3) of the Federal Constitution, the two-step threshold must be satisfied before leave to commence a judicial review can be granted.

Another question is whether, when a criminal court made an order of discharge not amounting to an acquittal (DNAA) pursuant to the public prosecutor’s application under Section 254 (1) of the Criminal Procedure Code, the remedy for judicial review lies against the Public Prosecutor’s application during the subsistence of the DNAA order?

On May 7, this year, the Court of Appeal granted the Malaysian Bar leave to commence a judicial review to challenge the AG’s decision on September 4, 2023, to halt proceedings against Ahmad Zahid.

The Court of Appeal had overturned the June 27, 2024, High Court’s decision, which rejected the Malaysian Bar’s application for leave to commence the judicial review.

Ahmad Zahid, who is the second proposed respondent in the judicial review proceedings, subsequently filed an application on May 25 this year seeking leave to appeal to the Federal Court. AG Tan Sri Mohd Dusuki Mokhtar filed a separate leave to appeal application.

In the judicial review application, the Malaysian Bar is seeking a declaration from the High Court that the decision by then-High Court Judge Datuk Collin Lawrence Sequerah (now a Federal Court judge) to grant Ahmad Zahid a DNAA on 47 criminal breach of trust, corruption and money laundering charges related to the Yayasan Akalbudi funds is null and void.

The High Court granted the DNAA after the prosecution informed the court that the Attorney-General’s Chambers (AGC) intended to halt proceedings against Zahid to scrutinise new evidence.

During the proceedings, Ahmad Zahid was represented by a team of 11 lawyers led by Datuk Hisyam Teh Poh Teik, while Senior Federal Counsel Ahmad Hanir Hambaly@Arwi and Federal Counsel Imtiyaz Wizni Aufa Othman appeared for the AG.

The Malaysian Bar was represented by a team of lawyers led by Datuk S. Ambiga and Steven Thiru. — Bernama