PUTRAJAYA (April 15): The attorney general did not act unlawfully or unreasonably when he applied for a discharge not amounting to an acquittal (DNAA) for Datuk Seri Ahmad Zahid Hamidi, the Court of Appeal heard on Wednesday.

Senior federal counsel Ahmad Hanir Hambaly argued before the court that there was no illegality in the conduct of Tan Sri Idrus Harun, who was the attorney general at the time, in putting forward the application for the now infamous DNAA for Zahid in his Yayasan Akalbudi corruption case.

There was also no irrationality or procedural impropriety in the decision made under Article 145(3) of the Federal Constitution and Section 254 of the Criminal Procedure Code, and was within the lawful scope of prosecutorial discretion, any statutory or constitutional provision, he noted.

“There is no material to suggest the decision was so unreasonable that no reasonable prosecutor would have taken the same course,” Ahmad Hanir stressed.

Ahmad Hanir was submitting before the bench led by judge Datuk Faizah Jamaluddin in the legal challenge by the Bar Council against the AG’s Chambers for its decision to drop the 47 criminal charges against Zahid.

The case was withdrawn under Idris’ instruction even after the prosecution secured a prima facie ruling that requires an accused to defend himself. The Bar is now appealing a High Court’s decision that dismissed its bid for leave to initiate a judicial review challenging the DNAA.

In addressing the bench that also included Datuk Dr Lim Hock Leng and Datuk Nadzarin Wok Nordin, Ahmad Hanir said the prosecution had cited the emergence of new issues and fresh evidence that required further investigation through various representation letters by Zahid during the course of the trial.

Further, he said the public prosecutor must also take into account the public interest in ensuring investigations are not rushed or incomplete when applying for a DNAA.

Ahmad Hanir said that the threshold for granting leave to challenge prosecutorial discretion was “exceptionally high” and required concrete evidence of illegality, rather than mere allegations or speculation.

“The applicant’s affidavits do not disclose any cogent evidence of irrationality or failure to consider relevant factors,” he added.

However, lawyer Datuk Ambiga Sreeneevasan countered that prosecutorial discretion must always be exercised in line with public interest considerations.

Representing the Bar, she reiterated from her oral submissions last week that the defence had already called 15 witnesses, including Zahid himself, by the time the prosecution sought the DNAA.

She noted that the trial went on for 77 days, with 99 witnesses called to testify for the prosecution.

Ambiga’s co-counsel Steven Thiru further submitted that the DNAA decision appeared to amount to preferential treatment.

The bench said that it will deliver its decision at a later date.