This article first appeared in The Edge Malaysia Weekly on January 22, 2024 - January 28, 2024

The judiciary is one of the three pillars of society, the other two being the legislative and the executive.

The legislative, which is essentially composed of the parliamentarians, passes the laws that are implemented by the executive. The judiciary interprets the laws and acts on anyone who flouts the rules.

These three pillars of society are supposed to be independent to ensure a system of checks and balances in the administration of the country.

The Attorney General’s Chambers (AGC) comes under the ambit of the legislative. Under the constitution, the attorney general (AG) has the power to prosecute and drop charges without having to give a reason.

The checks and balances for the AGC is the judiciary, which weighs any case filed by the prosecutors based on the rule of law and evidence.

Today, we have a situation in Malaysia where the judiciary feels that it is blamed by the public at large whenever the AGC withdraws charges, especially in high-profile cases. Chief Justice Tun Tengku Maimun Tuan Mat commented at a conference last week that when the prosecutor withdraws a case, the judge is labelled as “corrupt and incompetent”.

At the same conference, Attorney General Datuk Ahmad Terrirudin Mohd Salleh said while discharging their role, the prosecution’s discretion to prosecute or discontinue any case is based on the evidence provided by the investigating bodies and takes into consideration the penal law and procedures. He also said that the public prosecutor is not bound to furnish any reason or whatsoever to any party.

Neither Tengku Maimun nor Ahmad Terrirudin went into the specifics, but in recent times, the most controversial case has had to do with the High Court giving Umno president Datuk Seri Ahmad Zahid Hamidi a discharge not amounting to acquittal (DNAA) following the public prosecutor’s decision to discontinue the case against him.

The prosecution decided to discontinue even after Ahmad Zahid had been told to enter his defence for 47 charges related to criminal breach of trust, corruption and money laundering.

While the AG is right that he does not have to give any reason for discontinuing a case, Tengku Maimun is also not wrong in describing the judiciary as having to bear the collateral damage.

Will the long-talked-about reform of the AGC help avoid such a situation?

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