(Feb 27): In her recent parliamentary reply, Minister in the Prime Minister’s Department (Law and Institutional Reform) Datuk Seri Azalina Othman Said contended the Attorney General’s Chambers (AGC) merely granted 18 VIPs a discharge not amounting to an acquittal (DNAA) between 2017 and 2024.

Nonetheless, she did not reveal the names of the VIPs who were granted such DNAA. Anyway, the entire planet knows among the high-profile VIPs who were granted DNAA include the current deputy prime minister, former prime minister Datuk Seri Najib Razak and former treasury secretary general Tan Sri Dr Mohd Irwan Serigar Abdullah.

Najib and Irwan were granted a DNAA over six criminal breach of trust charges involving RM6.6 billion. Hitherto, both have not been reindicted despite the fact that under the law, the DNAA is merely a provisional release.

As expected, the minister cited Article 145(3) of the Federal Constitution as the basis for the AGC to resort to such mind-boggling decisions — asking the court to grant DNAA to certain VIPs. Yes, the said constitutional provision allows the attorney general to use (or misuse?) his discretion to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah Court, a native court, or a court martial.

Before delving into a deeper analysis of her aforesaid statement, it's important to put the discussion on this issue into perspective.

To begin with, no one, let alone members of the legal fraternity, questions the discretionary power vested in the AG cum the public prosecutor under article 145 of the apex law. Such a power is duly embedded in the highest law of the law for noble and sacrosanct reasons. One of them is to ensure the chief prosecutor of the nation is able to carry out his job without fear and favour. Cowardice is not the name of the game.

Some even believe that the discretionary power enshrined in Article 145 of the Federal Constitution is almost absolute in nature. But as rightly pointed out by His Highness YM Raja Azlan Shah in the case of Pengarah Tanah dan Tanah Galian v Sri Lempah Enterprise Sdn Bhd, absolute discretion is a contradiction in terms. Every discretion must have its limits; otherwise, there will be a dictatorship!

And Lord Acton used to say “power corrupts and absolute power corrupts absolutely”. Be that as it may, the recent judicial trends involving this issue seem to hold that the power of the AG is not unlimited. It is subject to checks and balances.

Therefore, it may be questioned by courts in certain circumstances. In other words, unless such a vast power is judiciously exercised, the AG’s power would still be subject to judicial scrutiny.

Having said the above, we may safely argue that the issue of DNAA being granted to VIPs is not about the issue of numbers. On the contrary, it is about the manner in which such DNAA was granted in the first place.

For instance, in a case where the prosecution managed to successfully establish a prima facie case against an accused person who faced 47 criminal charges, including charges entailing corruption and abuse of power, it would have been preposterous for the AG to ask the court to grant the DNAA. It just did not make any sense. Worse, the alleged offender was already called for defence, and he had given his testimony in court.

When the court held that the prosecution managed to prove prima facie against an accused person who faced 47 criminal charges, it implied that the prosecution had a solid case against such an accused person. After all, the court had to apply maximum evaluation of all the evidence tendered by the prosecution before it decided to call that person to enter his defence.

Sorry minister, we are not convinced at all by your reply!

Mohamed Hanipa Maidin is a former deputy minister of law.

Read also:
18 high-profile cases granted DNAA from 2017 to 2024, says Azalina