PUTRAJAYA: There is no evidence of illegality or irrationality in the Attorney General's decision to apply for a discharge not amounting to an acquittal (DNAA) in the graft case of Deputy Prime Minister Datuk Seri Dr Ahmad Zahid Hamidi, the Court of Appeal has heard.
Senior Federal Counsel Ahmad Hanir Hambaly submitted that the Malaysian Bar, as the applicant in the appeal, had failed to support its allegations of illegality or irrationality with compelling evidence.
"Thus it has failed to cross the two-step threshold test to overcome the strong presumption of legality in the making of the public prosecutor's decision to apply for a DNAA," SFC Ahmad Hanir said here on Wednesday (April 15).
Ahmad Hanir was making submissions in the hearing of the Bar's appeal against the High Court's dismissal of its application for leave to initiate judicial review proceedings, relating to the AG's decision to discontinue the prosecution against Ahmad Zahid in the Yayasan Akalbudi case.
A three-judge panel chaired by Justice Faizah Jamaludin, along with Justices Dr Lim Hock Leng and Nadzarin Wok Nordin presided over the hearing.
SFC Ahmad Hanir said the applicant had not shown the necessary nexus in facts to indicate that it was irrelevant for the public prosecutor to consider Ahmad Zahid's written representations.
"The applicant also failed to show particularly how the public prosecutor had improperly taken into account the fact that the written representations were made after Ahmad Zahid's appointment as Deputy Prime Minister.
"Therefore, these allegations are merely baseless assumptions without compelling prima facie evidence," Ahmad Hanir said.
The prosecution also said that the High Court did not err in its decision to dismiss the Bar's leave application and sought for the appellate court to dismiss the appeal.
Meanwhile, former Bar president Datuk S. Ambiga, who appeared for the Bar, submitted that while the rights of the accused were recognised, the ultimate exercise of prosecutorial discretion must be guided by public interest considerations.
She said in the Yayasan Akalbudi case, 99 prosecution witnesses had testified and Ahmad Zahid's defence was called where 15 defence witnesses testified.
Lawyer Steven Thiru, who also appeared for the Bar, told the court that Ahmad Zahid's DNAA "smacks of preferential treatment."
After the submissions were completed, Justice Faizah then instructed for the case to go through a case management to fix a decision date.
"We would like more time than to rush our decision this afternoon. We would like to thank you all parties for your very able submissions.
"We are now left with the difficult task of making a decision," Justice Faizah said.
On Dec 2, 2023, the Bar filed the leave application for judicial review and named the AG and the Deputy Prime Minister as respondents.
It claimed that the AG had acted ultra vires when he applied the DNAA for Ahmad Zahid.
It sought a declaration that the AG's decision was null and void and was made beyond the jurisdiction and authority given to the AG under Article 145(3) of the Federal Constitution and Section 254(1) of the Criminal Procedure Code (CPC).
The Bar also applied for a mandamus order from the court to compel the AG to act per the law under Section 254A of the CPC by prosecuting Ahmad Zahid again.
On June 27, 2024, the High Court dismissed the Bar's leave application and rejected its bid to refer three constitutional questions over the matter to the Federal Court.
Ahmad Zahid was granted a discharge not amounting to an acquittal (DNAA) for all 47 charges on Sept 4, 2023, after the prosecution informed the court that the AGC wanted to halt the proceedings against Ahmad Zahid to scrutinise new evidence.
