KUALA LUMPUR, April 18 — The Malaysian Bar today argued it has a statutory obligation to uphold the cause of justice in challenging the Attorney General Chambers’ (AGC) decision to apply for a discharge not amounting to an acquittal (DNAA) in Datuk Seri Ahmad Zahid Hamidi’s Yayasan Akalbudi case.
In today’s High Court leave hearing on the Bar’s judicial review bid, lawyer Datuk Ambiga Sreenevasan who appeared for the Bar said the statutory body has a real and genuine interest in the promotion and preservation of the rule of law and the administration of justice.
This, she pointed out, was in accordance with its statutory obligations mandated under Section 42(1) of the Legal Professions Act which includes discharging its function by upholding the cause of justice without regard to its own interests or that of its members, uninfluenced by fear or favour.
“We need to be fair to the administration of justice and not anything else. We never asked them of this (DNAA) but when you do it and you are saying there is something wrong with our institutions, that is something we need to keep them accountable for.
“All we are asking for is for an explanation from the AGC (on its decision to apply for DNAA).
“So much work was done ...to just come and give reasons that have been given, the hard work would go to waste just because someone is screaming political prosecution. This is about the administration of justice,” the former Bar president said before High Court judge Datuk Amarjeet Singh Serjit Singh.
On September 4, 2023, the prosecution decided to discontinue the Yayasan Akalbudi trial, which resulted in the High Court granting Ahmad Zahid a DNAA for all 47 corruption charges he faced.
Ahmad Zahid was accused of 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.
At that time, prosecutors 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.
Up until Ahmad Zahid’s DNAA, the prosecution had called a total of 99 witnesses and with Ahmad Zahid’s lawyers having called 15 defence witnesses so far.
Arguing on behalf of the AGC, senior federal counsel Shamsul Bolhassan said the court ought to refuse the leave for judicial review since there was no compelling prima facie evidence in the Bar’s application to indicate that the DNAA was irrationally made.
He said there was no such evidence compelling enough to singularly lead to the inevitable conclusion that any of the grounds for judicial review have been made out in the AG’s exercise of his prosecutorial discretion in granting the DNAA and overcome the strong presumption of legality cloaking it.
Shamsul also said the DNAA was not amenable to judicial review since there was already a 2021 landmark decision by the Federal Court in Sundra Rajoo a/l Nadarajah v Menteri Luar Negeri, Malaysia & Ors.
He noted the Federal Court had in the Sundra Rajoo decision emphasised that the Public Prosecutor’s discretion under Article 145(3) of the Federal Constitution is cloaked with a strong presumption of legality.
Article 145(3) provides that the AG shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial.
Shamsul’s submission was also seconded by Ahmad Zahid’s lawyer Hisyam Teh Poh Teik who added that the onus of burden lies on the challenging party — in this case the Malaysian Bar — to produce strong evidence and legal basis to challenge the decision of the AG.
In today’s hearing, the court also heard an application from the Malaysian Bar to refer three constitutional questions to the apex court for determination.
The application was filed under Article 128(2) of the Federal Constitution, read with Section 84 of the Courts of Judicature Act.
The three questions posed hinges on the issue of the applicant’s burden of proof when challenging a decision to apply for a DNAA; the constitutionality of a decision to apply for a DNAA for an undefined time and whether the Sundra Rajoo principle that requires an applicant to adduce “compelling and prima facie proof” of its case at the leave stage in a challenge against the AG’s decision under Article 145(3) applies to a challenge against the AG’s decision to seek a DNAA under Section 254 of the Criminal Procedure Code.
The court has fixed June 27 to deliver both decisions on the leave application and the Bar’s application to refer questions of law to the Federal Court.
