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The Malaysian Bar is perturbed over the recent withdrawal by Deputy Public Prosecutor (“DPP”) Datuk Mohd Dusuki Mokhtar of all 47 charges faced by Deputy Prime Minister, Dato’ Seri Ahmad Zahid Hamidi (“Zahid Hamidi”), upon receiving instructions from then-Attorney General (“AG”), Tan Sri Idrus Harun (“Idrus Harun”), pursuant to Article 145(3) of the Federal Constitution and section 254(1) of the Criminal Procedure Code. The DPP pointed towards representations made by the defence in December 2022, alluding that there is a need for further investigation by the Malaysian Anti-Corruption Commission (“MACC”).1,2
The Malaysian Bar notes that the first letter of representation sent in by the defence was dated 8 December 2022 and took place more than three years after the case first commenced in the High Court. In addition, this representation letter was presented after the 15th General Election (“GE15”), after the appointment of the Prime Minister on 24 November 2022 and after the complete list of Malaysian Cabinet members was released on 2 December 2022.
It is further observed that on 8 August 2023 — less than a month ago — previous lead DPP Datuk Raja Rozela Raja Toran (“previous lead DPP”) was reported to have requested for an early retirement since 3 April 2023, and therefore, could no longer lead the prosecution for Zahid Hamidi’s trial.3 Idrus Harun was reported to have said at that juncture that the previous lead DPP would be on leave prior to her retirement starting from 30 August 2023. To further put it in context, it is also known that the current Chief Commissioner of MACC’s tenure was extended for another year on 10 May 2023,4 whereas Idrus Harun’s tenure was also extended for another six months from 6 March 2023.5 These dates, development of events, and actors in play, fuel much of the uproar by the public.
What is unpalatable is that Zahid Hamidi’s trial for the 47 charges commenced on 18 November 2019, and about 77 days of trial have elapsed. After 99 prosecution witnesses testified in the trial, the High Court on 24 January 2022 ordered Zahid Hamidi to enter defence on all 47 charges. This essentially means that the High Court had found that a prima facie case has been established by the prosecution, thereby necessitating Zahid Hamidi to enter his defence. This case was at the stage of defence with Zahid Hamidi’s 15th witness giving evidence, when the prosecution applied for a “discharge not amounting to an acquittal” (“DNAA”) on 4 September 2023.
The Malaysian Bar asserts that the Attorney General’s Chambers (“AGC”) has tarnished its own reputation and credibility as the prosecuting party and that of the MACC as the investigating body, when it applied for a DNAA at such a late juncture after a prima facie has already been established by the previous lead DPP.
The recent media statement issued by the AGC dated 5 September 2023 (“Media Statement”)6 was completely devoid of proper justifications as regards why it had requested for a DNAA. With the DNAA granted by the High Court, Zahid Hamidi’s counsel seized the opportunity to push for an outright acquittal instead of a DNAA. Let us be clear and make no mistake about it: the learned High Court Judge had no alternative but to decide on either a DNAA7 or an acquittal. It therefore rings hollow for the AGC to wholly attribute the withdrawal of the case to the High Court and use that as a reason in the Media Statement, instead of providing a detailed explanation.
The High Court Judge in this case had lamented that should the prosecution decide in the near future to not proceed with any further charges, then much precious judicial time would have been wasted and a great amount of taxpayers’ money would also have been wasted. On this note, the Malaysian Bar stresses that the AG must take responsibility and be accountable to the citizens of the country; and should the prosecution decide in the near future to proceed with any further charges, then it should avail itself of the process of “reinstatement of trial after discharge” under section 254A of the Criminal Procedure Code, under which Zahid Hamidi’s trial shall be reinstated and continued as if no such DNAA order had been given.
In the recent past, there have been cases where criminal charges against certain politicians were dropped by the AGC amidst trial, reportedly following “instructions”,8 or as a result of representations.9,10 These cases are classified as “high-profile cases” as they hold national and public interests primarily due to the substantial sums of money allegedly misappropriated by those individuals in positions of power and authority.
Just to add for good measure, the Malaysian Bar expects that good sense and justice will prevail, and that this unhealthy trend will not continue unabated — especially in the light of the ongoing 1MDB case, the ongoing trial which former Prime Minister Dato’ Sri Najib Razak is facing,11 and his wife Datin Seri Rosmah Mansor’s second corruption case where she is facing 12 money laundering charges and five counts of failure to declare her income to the Inland Revenue Board.12
What is abundantly clear to the Malaysian Bar — which has consistently pressured the government of the day — is that there must be real political will to carry out a complete revamp of the structure within the AGC where the roles of the AG and the Public Prosecutor must be separated to create true independence in the exercise of prosecutorial powers vested with the Public Prosecutor, free from any influence of the Executive. The AG can take its advisory role to the government, but the Public Prosecutor acts as the guardian of public interest and must fulfil its functions and duties entrusted with utmost integrity, free from political influence and bias, to maintain public confidence in the Malaysian criminal justice system.
The Malaysian Bar notes that the current Government of the day had, recently in August 2023,13 announced that it will undertake a comprehensive empirical study within a year before finalising the proposed separation of the AG’s Office from the Public Prosecutor’s Office. The Zahid Hamidi’s case has shown all of us that it is increasingly urgent that pivotal changes must take place by 2024 so that our criminal justice system is strengthened to remove prospects and/or appearance of bias in the way politicians are being charged, and in the way charges against them are being withdrawn.
Karen Cheah Yee Lynn
President
Malaysian Bar
7 September 2023
1 “Prosecution withdraws all 47 charges against Zahid after four-year trial”, The Edge Malaysia, 4 September 2023.
2 “Zahid gets discharge not amounting to acquittal in Yayasan Akalbudi trial”, Malay Mail, 4 September 2023.
3 “Peguam Negara jelaskan Raja Rozela mohon bersara awal”, Berita Harian, 8 August 2023.
4 “Azam’s contract as MACC chief extended by 1 year”, Free Malaysia Today, 10 May 2023.
5 “AG Idrus Harun’s contract extended 6 months”, Free Malaysia Today, 3 March 2023.
6 “Kenyataan Media: Keputusan Mahkamah Melepas Tanpa Membebaskan YAB Dato’ Seri Dr. Ahmad Zahid Bin HAMIDI”, Jabatan Peguam Negara (Attorney General’s Chambers), 5 September 2023.
7 “Jong Nam trial: Federal Court strikes out prosecution’s appeal”, New Straits Times, 18 September 2019.
8 “Prosecution applies to grant Ku Nan discharge not amounting to an acquittal”, New Straits Times, 7 December 2020.
9 “Court drops graft charges against Guan Eng, Phang”, Malaysiakini, 3 September 2018.
10 “Conditional discharge for Azeez in graft, money laundering case”, Free Malaysia Today, 23 September 2022.
11 “Najib’s fourth 1MDB-related trial, this one involving IPIC, begins on Monday”, The Edge Malaysia, 2 April 2023.
12 “Rosmah files application to have money laundering, tax evasion charges struck out”, Malay Mail, 7 September 2023.
13 “Separation of AG, Public Prosecutor power: Empirical study within one year, says Azalina”, The Star, 19 August 2023.