The Malaysian Bar has filed a judicial review application against the Attorney General and Deputy Prime Minister Datuk Seri Dr Ahmad Zahid Hamidi seeking, inter alia (among others), a prerogative order of mandamus instructing the AG to act per the law, including prosecuting Zahid again if deemed appropriate, as per Section 254A of the Criminal Procedure Code (CPC).
Section 254A, which is a new section, inter alia, provides “Subject to subsection (2), where an accused has been given a discharge by the Court and he is recharged for the same offence, his trial shall be reinstated and be continued as if there had been no such order given”.
By virtue of this new section, the court does not have to try the case de novo (to start it all over again from the beginning).
As we know, on Sept 4, the Kuala Lumpur High Court granted Zahid a discharge not amounting to an acquittal (DNAA) for all 47 charges related to criminal breach of trust, corruption, and money laundering involving Yayasan Akalbudi funds.
Such a mind-boggling decision was made after the prosecution informed the court that the AG's Chambers wanted to halt the proceedings against Zahid to scrutinise new evidence. Hitherto, the AG has not made any statement on the legal status of such new evidence.
The media reports that Zahid is set to oppose the Malaysian Bar's application. And the hearing for the Malaysian Bar's application to obtain permission from the court to initiate the judicial review is set for Jan 11, 2024, before judge Datuk Amarjeet Singh.
As of today, it is not clear whether the AG would oppose the same or not. Based on my experience, the AG invariably opposes such an application though the threshold for an application for leave is relatively low.
Apart from asking for an order of mandamus, the Malaysian Bar is equally seeking an order annulling the AG's decision (an order of certiorari) and a declaratory order declaring the DNAA granted to Zahid to be null and void, asserting that it exceeded the jurisdiction and authority granted to the AG.
The mandamus relief sought by the Malaysian Bar includes compelling the AG to provide information and documentation justifying the decision to apply for a DNAA against Zahid.
The Malaysian Bar asserts that the AG acted beyond his jurisdiction and that the decision was unreasonable and irrational.
Legally speaking, the DNAA is not a final verdict in the sense that one who is armed with such a verdict may not earn a status as a completely free man. In the case of Zahid, he may be possibly re-indicted by the AG though many feel that such a possibility seems to be next to impossible given his high status as deputy prime minister in the unity government.
Though the verdict of DNAA was officially pronounced by a judge, in actual fact it was essentially a decision by the AG when he decided to enter nolle prosequi (where the public prosecutor proposes to not to proceed with the prosecution) under Section 254 of the CPC.
Zahid's DNAA has been subject to critical opprobrium as such a verdict was only made after he was called for his defence for all 47 charges in January 2022. An accused is only called for defence if a judge has duly satisfied himself or herself that the prosecution managed to establish a prima facie case against such a person.
A prima facie case may be possibly construed as a strong case in that to establish a prima facie case, the prosecution needs to establish all the ingredients of the charge beyond reasonable doubt. It is a very high standard of proof.
Perhaps, the Malaysian Bar may face an uphill task in its attempt to annul the decision made by the AG, but in some jurisdictions, the courts there were ready and willing to review the AG's decision.
Mohamed Hanipa Maidin is a former member of Parliament for Sepang.