PUTRAJAYA: The Court of Appeal has allowed the Malaysian Bar's appeal in its legal challenge against the prosecution's decision to apply a discharge not amounting to an acquittal (DNAA) in Datuk Seri Dr Ahmad Zahid Hamidi's Yayasan Akalbudi graft case.
A three-judge panel chaired by Justice Faizah Jamaludin held that the Bar's application was not frivolous and raised arguable issues that should be heard at the substantive stage.
"This is an appropriate, rare and exceptional case that warrants a full judicial review," Justice Faizah said in a unanimous decision here on Thursday (May 7).
At the start of proceedings, Justice Faizah clarified that a DNAA was not a finding of innocence or guilt.
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She said the Bar was not attacking the criminal court's order granting the DNAA, as the High Court's DNAA order was a procedural consequence of the Attorney General's decision.
"What it challenges is the executive root of that order, namely the Attorney General's decision to discontinue the prosecution in respect of the charges against the second respondent (Ahmad Zahid) and to seek a DNAA," she said.
The Court of Appeal noted the Yayasan Akalbudi case was of public interest in corruption prosecutions, where the High Court had initially found a prima facie case after a maximum evaluation.
A total of 99 prosecution witnesses testified and Ahmad Zahid, who is Umno president, was called to enter his defence.
Fifteen defence witnesses testified over 53 days of trial.
"In our judgement, those matters cross the threshold for leave in an application for judicial review of the Attorney General's prosecutorial discretion.
"The challenge is to the legality and rationality of the decision-making process," Justice Faizah said.
The appellate court granted leave for the Bar's application to commence judicial review and ordered the matter to be remitted to the High Court for a full hearing.
No order was made as to costs.
The other judges on the panel were Justices Dr Lim Hock Leng and Nadzarin Wok Nordin.
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On Sept 4, 2023, then High Court judge Justice Collin Lawrence Sequerah (now a Federal Court judge) granted Ahmad Zahid a DNAA on all 47 charges after the prosecution told the court the Attorney General's Chambers wanted to halt proceedings to scrutinise new evidence.
On Dec 2, 2023, the Bar filed the leave application for judicial review, naming the Attorney General and the Deputy Prime Minister as respondents.
It claimed the Attorney General acted ultra vires in applying for the DNAA in the case.
The Bar sought a declaration that the Attorney General's decision was null and void, and made beyond the jurisdiction and authority conferred under Article 145(3) of the Federal Constitution and Section 254(1) of the Criminal Procedure Code.
It also sought a mandamus order to compel the Attorney General to act in accordance with Section 254A of the Criminal Procedure Code by prosecuting Ahmad Zahid again.
On June 27, 2024, High Court judge Justice Amarjeet Singh (now a Court of Appeal judge) dismissed the Bar's leave application and rejected its bid to refer three constitutional questions to the Federal Court.
The Bar then filed the appeal.
