KUALA LUMPUR (Oct 21): The Attorney General’s Chambers (AGC) and Datuk Seri Dr Ahmad Zahid Hamidi have obtained a stay on the Malaysian Bar’s judicial review challenging the discharge not amounting to an acquittal (DNAA) that had been given to Zahid for 47 charges of abuse of power, criminal breach of trust, and corruption related to Yayasan Akalbudi.
The stay is granted pending the outcome of the AGC and Zahid’s application to challenge the Court of Appeal’s decision earlier this year that had allowed the hearing of the merits of the Bar’s challenge, which is pending before the Federal Court.
High Court judge Datuk Azizan Md Arshad allowed the adjournment of the hearing, pending the outcome of the apex court’s decision.
The parties met Azizan on Wednesday in his chambers.
The Bar was represented by counsel Abhilash Subramaniam, while federal counsel Safiyyah Omar and Imtiyaz Wizni Aufa Othman appeared for the AGC.
Zahid was represented by counsel Datuk Guok Ngek Seong along with Mohd Shahrul Fazli Kamarulzaman, Atiqa Nazirah Azmi, Nurul Hannah Mohd Nazri, and Mukhlis Zambry.
When met after the proceedings, Guok and Abhilash confirmed that the stay had been granted.
On Oct 8, a three-member Federal Court bench, led by Chief Judge of Malaya Datuk Seri Hashim Hamzah, allowed the AGC and Zahid to pose several questions of law with regard to their challenge over the appellate bench’s decision in May which had allowed the Bar’s challenge to be heard on its merits before the High Court (Azizan).
In granting leave (permission), Hashim, who sat with Federal Court judges Datuk Nordin Hassan and Datuk Che Mohd Ruzima Ghazali, said they were allowing the AGC and Zahid’s motion due to the difference in tests applied by the High Court and the Court of Appeal.
“The bench is of the view that these are novel constitutional questions of law that require final determination.
“The questions posed have met the threshold under Section 96 of the Courts of Judicature Act for the merits (of the questions) to be heard. We allow the application,” Hashim had added.
In May, a three-member Court of Appeal bench unanimously allowed the Malaysian Bar to proceed with its challenge to the DNAA that had been given to Zahid following the prosecution’s decision, as judge Datuk Faizah Jamaludin ruled that the Bar’s application was not frivolous or vexatious.
Sitting alongside judges Datuk Dr Lim Hock Leng and Datuk Nadzarin Wok Nordin, Faizah declared that the case — which saw the AGC granting Zahid the DNAA — raised serious arguable issues that warranted a full hearing, sending the matter back to the High Court.
While acknowledging that the legal threshold to challenge prosecutorial discretion is exceptionally high, the appellate court ruled that this case is rare and exceptional.
The Bar filed the challenge in 2023, following then-deputy public prosecutor Tan Sri Mohd Dusuki Mokhtar (who is now the Attorney General) applying for a DNAA for Zahid despite the trial proceedings being already at the defence stage at the High Court.
The Bar’s challenge had initially been dismissed by the High Court. However, it was reinstated by the appellate bench, and is pending the Federal Court’s decision, following the matter being challenged by the AGC and Zahid.
The Bar’s other challenge over no further action (NFA) on Zahid, has also been put on hold, pending the outcome of the apex court’s decision.