KUALA LUMPUR: Former Cabinet minister Datuk Zaid Ibrahim (pic) is seeking leave from a High Court to subpoena witnesses for his judicial review proceedings over the Attorney General's decision not to prosecute Prime Minister Datuk Seri Najib Tun Razak.
On the other hand, the Attorney-General will be raising a preliminary objection on Zaid's application under Article 145 (3) of the Federal Constitution that the decision not to prosecute "is prerogative powers of the Attorney-General which cannot be challenged in court."
Zaid is applying for leave to initiate proceedings over the A-G's decision not to prosecute Najib over the claims on RM2.6bil donation and the SRC International Sdn Bhd.
High Court (Appellate and Special Powers) judge Justice Hanipah Farikullah on Tuesday set May 20 to hear Zaid's application for leave to subpoena witnesses.
Zaid's lawyer, Americk Sidhu, said they want to get leave of the court to subpoena witnesses to give sworn evidence in the judicial review proceedings.
"We want to file this application as we can't persuade them (witnesses) to affirm affidavits. If someone is not voluntary, we have to subpoena them to give evidence in oath in court," said Americk.
Saying such an application was not normal for judicial review, Americk said the judge had ordered them to file this application within two weeks.
Americk refused to reveal the identities of the witnesses but said it could probably be two or three.
"We have not finalised. If she (judge) allows it, we will subpoena them," he added.
In his application for leave, Zaid wants to get a declaration that the decision not to prosecute Najib is beyond the powers of the Attorney General under Article 145 (3) of the Federal Constitution.
Under Article 145 (3), the Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence.
Zaid wants to apply for a declaration that the decision of the Public Prosecutor directing the Malaysian Anti-Corruption Commission to close its files upon the investigation into the matter is beyond the powers of the A-G under the Federal Constitution.
In his court papers dated Feb 2, Zaid is seeking for a direction to quash the decision and compel the A-G to institute criminal proceedings against Najib under the appropriate provisions of the Penal Code and or the MACC Act 2009.
In his statement, Zaid said the A-G took into account irrelevant considerations in arriving at the decision.
Zaid said the A-G has no power to direct the closure of the files by the MACC and that the A-G has abused his discretion conferred upon him by the provisions of Article 145 (3).
The Attorney-General’s Chambers had on Jan 26 found that no criminal offence was committed by Najib in relation to SRC International and the alleged RM2.6bil donation.
Attorney-General Tan Sri Mohamed Apandi Ali said that he found no evidence to show that the donation was "an inducement or reward for doing or forbearing to do anything in relation to his capacity as Prime Minister".
Apandi said that the donation, which was actually RM2.08bil, was a personal donation from the Saudi royal family and given without any consideration.
On the two investigation papers on SRC International, Apandi said there were no evidences to prove that Najib had any knowledge nor had he given any approval for the transfer of the monies from the account of SRC International into his personal accounts.