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The Malaysian Bar has initiated legal proceedings in the Kuala Lumpur High Court, seeking judicial review over the Attorney General (“AG”)’s decision of 4 September 2023 in applying to the Court for a discharge not amounting to an acquittal (“DNAA”) in the case involving 47 charges against Deputy Prime Minister, Dato’ Seri Ahmad Zahid Hamidi (“Zahid Hamidi”).
Having considered at length the facts and circumstances of Zahid Hamidi’s case, the Malaysian Bar has taken this legal recourse as part of its statutory duty to uphold the cause of justice, uninfluenced by fear or favour. It cannot be disputed that Zahid Hamidi’s trial commenced more than four years ago on 18 November 2019, where a prima facie case was established — with 77 days of trial having been conducted, Zahid Hamidi’s 15th witness giving evidence, and the matter being in the midst of its defence stage on 4 September 2023 — when assertions were made by the AG that further investigation by the Malaysian Anti-Corruption Commission was needed based on several representations made by Zahid Hamidi as at December 2022, three years after the case had commenced. 1,2
It is the Malaysian Bar’s concerted view that the AG’s discretionary powers under Article 145(3) of the Federal Constitution (“FC”) is not absolute and should be restricted in its scope and limit, exercised in a justiciable manner as determined by the Courts3 under its revisionary powers and inherent jurisdiction in accordance with the law.4
Zahid Hamidi’s case holds national and public interest as it involves grave accusations of criminal breach of trust, bribery, and money laundering against an individual in power and authority at the time he was charged — seen in tandem and in the light of the circumstances of the stage of proceedings in the case, vis-à-vis the continuing power he holds at the Executive level as at 4 September 2023. The Malaysian Bar’s position regarding this matter is referred to in our observations made on 7 September 2023.5
In this judicial review filed, the Malaysian Bar seeks, among others, the following reliefs:
(a) A certiorari to quash the AG’s decision of 4 September 2023 in applying for a DNAA in Zahid Hamidi’s case;
(b) A declaration that the AG’s decision of 4 September 2023 is null and void and/or made in excess of the jurisdictions and/or powers under Article 145(3) of the FC and section 254(1) of the Criminal Procedure Code;
(c) A declaration that the AG’s decision of 4 September 2023 is null and void and/or unreasonable and tainted with irrationality;
(d) A mandamus directing the AG to furnish the Malaysian Bar with all information, documentation, reasons, basis, and particulars relied upon in arriving at the decision on 4 September 2023 to apply for a DNAA of Zahid Hamidi, including (but not limited to), the letters of representation issued by or on behalf of Zahid Hamidi;
(e) A mandamus directing the AG to provide the Malaysian Bar at regular intervals with all information, documentation, reasons, basis, and particulars pertaining to the status of the ongoing and/or further investigations on Zahid Hamidi which formed part of the reason for arriving at the decision of the AG to apply for a DNAA, including any decision of the AG to recharge, continue trial, or discontinue investigations against Zahid Hamidi; and
(f) The Malaysian Bar be granted access to all matters and/or documents filed in Court, including court recordings, orders, and judgments.
The unsealed copies of the judicial review application, requisite statement, and supporting affidavit, were served on the AG earlier today.
The Malaysian Bar cannot emphasise enough the importance of a judicial review process — which is specifically designed to challenge decisions, actions, or omissions of public bodies in the event that checks and balances on the Executive and Legislative are required, and/or where the basic structure of our FC is called into question for proper interpretation — in the interest of our democracy.
Karen Cheah Yee Lynn
President
Malaysian Bar
4 December 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 Sundra Rajoo a/l Nadarajah v Menteri Luar Negeri, Malaysia & Ors [2021] 5 MLJ 209.
4 Dhinesh a/l Tanaphll v Lembaga Pencegahan Jenayah & Ors [2022] 3 MLJ 356.
5 “The Attorney General’s Chambers’ Media Statement Fails to Provide Justifiable Reasons to the Public on the Withdrawal of the 47 Charges against Zahid Hamidi”, Malaysian Bar website, 7 September 2023.