PUTRAJAYA: The Malaysian Bar’s judicial review challenging the Attorney General’s (AG) decision to discontinue the prosecution of Datuk Seri Dr Ahmad Zahid Hamidi in the Yayasan Akalbudi graft case will proceed to a full hearing at the High Court.
The Court of Appeal allowed the Bar’s appeal and granted leave for the judicial review application to be heard on its merits.
In a unanimous decision, a three-judge panel chaired by Justice Faizah Jamaludin held that the application was not frivolous, as it raised arguable issues warranting full consideration by the court.
“This is an appropriate, rare and exceptional case that warrants a full judicial review,” Justice Faizah said yesterday.
The other judges on the panel were Justices Dr Lim Hock Leng and Nadzarin Wok Nordin.
Justice Faizah clarified that a discharge not amounting to an acquittal (DNAA) does not amount to a finding of innocence or guilt.
“Since the High Court’s DNAA order was a procedural consequence of the Attorney General’s decision, the appellant is not attacking the criminal court’s order in granting the DNAA.
“What is being challenged is the executive root of that order, namely the AG’s decision to discontinue the prosecution against the second respondent (Ahmad Zahid) and seek a DNAA,” she said.
The appellate court noted that the Yayasan Akalbudi case involved significant public interest, particularly as the High Court had earlier ruled that the prosecution had established a prima facie case against Ahmad Zahid after a maximum evaluation of the evidence.
A total of 99 prosecution witnesses testified during the trial before Ahmad Zahid, who is Umno president and Deputy Prime Minister, was ordered to enter his defence. The defence later called 15 witnesses over 53 days of proceedings.
“In our judgment, these matters cross the threshold required for leave in a judicial review involving the AG’s prosecutorial discretion. The challenge concerns the legality and rationality of the decision-making process,” Justice Faizah said.
No order as to costs was made.
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 informed the court that the Attorney General’s Chambers wished to halt proceedings to review new evidence.
The Malaysian Bar filed its application for leave for judicial review on Dec 2, 2023, naming both the AG as well as Ahmad Zahid as respondents.
The Bar contended that the AG had acted ultra vires in applying for the DNAA and sought a declaration that the decision was null and void for exceeding powers under Article 145(3) of the Federal Constitution and Section 254(1) of the Criminal Procedure Code.
It also sought a mandamus order compelling the AG to proceed with the prosecution under Section 254A of the Criminal Procedure Code.
On June 27, 2024, High Court judge Justice Amarjeet Singh, now a Court of Appeal judge, dismissed the Bar’s application for leave and rejected its bid to refer three constitutional questions to the Federal Court.
The Bar subsequently appealed to the Court of Appeal.
