“When the public prosecutor decides to withdraw charges, the courts only have one of two very limited consequential options. The options are granting a discharge not amounting to an acquittal (DNAA) or discharge amounting to an acquittal.” — Chief Justice Tun Tengku Maimun Tuan Mat
PUTRAJAYA (Jan 15): Chief Justice Tun Tengku Maimun Tuan Mat said that the judiciary was incorrectly labelled as “corrupt” and “incompetent” by the public after the public prosecutor had withdrawn criminal charges against certain high-profile individuals last year.
In her keynote speech at the Opening of the Legal Year 2024 here, Tengku Maimun highlighted these “high profile” cases in 2023 without naming the cases, where the public prosecutor as part of the Attorney-General’s Chambers (AGC) had withdrawn charges against political persons.
“In particular, in the recent past including last year, the public prosecutor made the decision to withdraw criminal charges against certain high-profile individuals,” she said.
She said that even though the public prosecutor had withdrawn the charges, a large part of the blame fell on the judiciary.
“These decisions were not particularly received well by the public but a large part of the blame was put on the judiciary for making the only available consequential orders upon the withdrawal of such charges... when a charge is withdrawn the judge is labelled as corrupt and incompetent,” she said.
She explained that the AG has the discretion Under Article 145(3) of the Federal Constitution to withdraw charges. As a consequence, there is very little judges can do.
“Under Article 145(3) of the Federal Constitution the Attorney General who is also the public prosecutor has the discretion to institute, conduct or discontinue any proceeding for an offence other than before a Syariah Court. When the public prosecutor decides to withdraw charges, the courts only have one of two very limited consequential options.
“The options are granting a discharge not amounting to an acquittal (DNAA) or discharge amounting to an acquittal.”
She said that the judges cannot ask for the charges to remain as it was the public prosecutor who proffered the charges to court and judges have specific constitutional functions.
“The courts cannot turn around and insist to the public prosecutor that a charge remain. Each of them, the judiciary and the public prosecutor have their own constitutionally-demarcated constitutional functions and both must be adjudged fairly for the exercise of their powers to the exclusion of the other,” she said.
She said that when a charge is withdrawn, the judge is only making “consequential orders” and that the public has failed to understand this.
“What the public fails to understand is that the person responsible for that decision is the public prosecutor and not the courts. It is often the courts that are chastised for such decisions and this erodes public confidence in the judicial system,” she added.
On Sept 3, last year, Deputy Prime Minister Datuk Seri Dr Ahmad Zahid Hamidi was granted DNAA of 12 criminal breach of trust (CBT) charges, eight counts of bribery and 27 for money laundering, involving scores of millions of ringgit belonging to Yayasan Akal Budi.
Irresponsible parties painting judiciary and judges in bad light inciting hatred
Tengku Maimun also brought up two recent Federal Court rulings which had to do with whether the state of Selangor was empowered to pass certain legislation.
She said that these two cases were made out by some parties to be more than what they actually were, although the two challenges were expressly envisioned and catered for by the Federal Constitution.
She alluded to the fact that certain parties made it about Islam.
“These cases had nothing to do with the fact of the pure religion of Islam. They merely sought to reemphasise the clear demarcation of powers between the federation and the states,”
She said that certain irresponsible parties had painted the picture that the judiciary has an “agenda” or motives to eradicate Islam in this country, or an agenda to remove the Islamic legal system in Malaysia.
“The comments in relation to the two federal cases' decisions are far and wide. In some part these comments unjustifiably question the personal faith of certain judges or even their motivation for deciding as such. In other respects, such comments incite hatred and ill will among the public against the judiciary or the fear of perceived distorted outcome of such decisions. In certain other respects, large crowds are mobilised and their presence is used to intimidate the judges,”
However, she said that these parties fail to mention is that by clearly interpreting the Federal Constitution and defining the powers of Parliament and the state legislatures, the Federal Court ensures the continuous and steady application of Islamic law in the states as Parliament does not have the power to erode it.