M'sian Bar gets leave to challenge AG's decision on Zahid's DNAA

The Court of Appeal has allowed the Malaysian Bar to pursue a judicial review against a decision by the attorney-general to temporarily discontinue prosecution against Ahmad Zahid Hamidi in 2023.

That was over the deputy prime minister’s 47 corruption charges involving Yayasan Akalbudi funds, where he obtained a discharge not amounting to an acquittal (DNAA) three years ago.

In a unanimous decision this morning, the panel of three judges led by Faizah Jamaludin said they found the Bar’s judicial review application “appropriate” and not frivolous.

They said the lawyers’ professional body raised arguable issues that warrant a full judicial review and remitted the matter back to the High Court for hearing.

The panel also said the challenge by the Bar was not a collateral attack on the criminal court presiding over the case; instead, it challenged the legality and rationality of the AG’s decision that led to Zahid’s DNAA.

“The criminal court cannot compel the AG in his role as public prosecutor to proceed with the prosecution once he (has) decided to discontinue it (as) such (a) decision remains with his constitutional responsibility under Article 145(3) of the Federal Constitution.

“Since the criminal court’s DNAA order was a procedural consequence of the AG’s decision, the appellant is not attacking the criminal court’s order granting a DNAA.

“(But) what it challenges is the executive root of that order, namely the AG’s decision to discontinue the prosecution in respect of the charges against Zahid and to seek a DNAA.

“Therefore, we find that the appellant’s application for judicial review was not a collateral attack on the criminal court’s order of a DNAA in respect of all 47 charges against Zahid.

“We (also) respectfully disagree with the High Court’s refusal of leave, as in our view, the High Court applied an unduly (high) standard at the leave stage and went too far into matters properly reserved for the substantive hearing,” Faizah said, in reading the panel’s judgment.

The panel also made no order to costs. Presiding with Faizah were Lim Hock Leng and Nadzarin Wok Nordin.

Zahid’s DNAA

The Kuala Lumpur High Court, on Sept 4, 2023, granted the prosecution’s application for DNAA on Zahid’s corruption case.

The lead prosecutor, Dusuki Mokhtar, who is the current AG, had laid out 11 reasons for the application, including to allow the prosecution a more comprehensive and complete investigation into Zahid’s case.

The DNAA was granted while the case was at the defence stage.

Following this, the Bar filed their judicial review application on Dec 4, the same year, in challenging the AG’s decision.

However, they failed to obtain leave to proceed with the judicial review in 2024, resulting in the present appeal before the panel.

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