KUALA LUMPUR (Jan 11): The Malaysian Bar informed the High Court here on Thursday that it wants to refer questions regarding its challenge on Deputy Prime Minister Datuk Seri Ahmad Zahid Hamidi’s discharge not amounting to acquittal (DNAA) in his Yayasan Akalbudi case to the Federal Court for consideration.
This was informed by counsel for the Bar, Datuk Ambiga Sreenevasan, during proceedings before judge Datuk Amarjeet Singh here.
However, Ambiga said the Bar has not filed these constitutional questions for the High Court to refer to the Federal Court under Section 84 of the Courts of Judicature Act (CJA).
Amarjeet then directed the Bar to file the questions on Jan 26 and fixed Feb 6 for case management of the matter before the registrar.
Under Section 84 of the CJA, reference of constitutional questions by the High Court, an applicant can ask the High Court to consider the constitutional questions to be referred to the Federal Court.
The Attorney General's Chambers, represented by senior federal counsel Ahmad Hanir Hambaly @ Arwi and federal counsel Imtiyaz Wizni Aufa Othman, however, informed the court that it would be objecting to the Section 84 application by the Bar.
Zahid's lawyers Datuk Hisyam Teh Poh Teik, Guok Ngek Seong and Hamidi Mohd Noh also indicated they would be objecting to the Bar’s application.
Prior to this, Hisyam sought leave (permission) from the court to address the court on and object to the Bar’s application for leave to initiate the judicial review.
Ahmad Hanir also informed the court the AG is objecting to the judicial review on the grounds that the Bar has not passed the threshold for the merits of the application be heard and this follows the landmark decision of Datuk N Sundra Rajoo.
The senior federal counsel said following the Federal Court's decision in the Sundra Rajoo matter, the applicant must show prima facie evidence that the AG’s decision to offer DNAA was filled with illegality, irrationality and procedural impropriety.
He also said the AG had acted within its powers to withdraw the case before the judgement was given by the court.
“The AG through the deputy public prosecutor has given 11 reasons for their withdrawal and this was based on the representation letter sent by Zahid,” he added.
Ahmad Hanir said the Bar has to also show the unreasonableness of the AG’s decision in arriving at the decision.
He added that the Bar has failed to show this in its application to seek judicial review and hence leave to grant the judicial review should be dismissed.
On Wednesday, The Edge reported that Zahid is also opposing the Bar’s application on the grounds that the civil court should not enter into the realm of jurisdiction of the criminal court.
The deputy prime minister also raised the issue that the Bar does not have the locus standi (legal right) to raise the judicial review and it acted as a busy body in raising the issue when it had not raised any issues on past DNAAs given to other personalities.
Zahid granted DNAA last September
On Sept 4 last year, the High Court had granted Zahid a DNAA for 47 charges related to criminal breach of trust, corruption, and money laundering involving Yayasan Akalbudi funds, after the prosecution informed that the AG's Chambers sought to halt proceedings against Zahid to scrutinise new evidence.
The Bar, in an application filed on Dec 2, 2023, named the AG and Zahid as respondents.
The association is seeking an order annulling the AG's decision and a declaration that it is null and void, asserting that it exceeded the jurisdiction and authority granted to the AG.
The Bar is also requesting a mandamus (prohibition) order instructing the AG to act in accordance with the law, including prosecuting Zahid again if deemed appropriate, as per Section 254A of the Criminal Procedure Code.
It is also seeking an order compelling the AG to provide information and documentation justifying the decision to apply for a DNAA against Zahid.
The Bar contends that the AG acted beyond jurisdiction and that the decision was unreasonable and irrational.