PUTRAJAYA: There is no evidence of illegality or irrationality with the Attorney General’s decision to apply 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 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,” he said.
Ahmad Hanir was submitting 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 dismissing the Bar’s leave application and sought that the appellate court 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 testified, and Ahmad Zahid’s defence was called, during which 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 instructed that the case proceed to case management to fix a decision date.
“We would like more time than to rush our decision this afternoon. We would like to thank all parties for your very able submissions. We are now left with the difficult task of making a decision,” she said.
On Dec 2, 2023, the Bar filed the leave application for judicial review, naming 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 to the court for a mandamus order compelling the AG to act in accordance with 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.
