“Power tends to corrupt; absolute power corrupts absolutely.”
Lord Acton
The University of Malaya Law Society (UMLS) would like to express our grave concerns over the recent developments in the Yayasan Akalbudi Trial following the granting of a discharge not amounting to an acquittal (DNAA) to Deputy Prime Minister Dato’ Seri Dr. Ahmad Zahid bin Hamidi from all 47 charges comprising of 27 counts of money laundering, 12 counts of criminal breach of trust and 8 counts of bribery charges of over RM 21.23 million in alleged bribes.
Hence, following national outrage and its implications towards Malaysian politics and the broader legal landscape, UMLS would like to urge (1) a thorough explanation of the Attorney General’s Chamber decision to request a DNAA at such a late stage of the proceeding; and (2) the prompt separation of the Attorney General Chambers (AGC) and the Public Prosecutor’s Office.
Overview
Deputy Prime Minister Dato’ Seri Dr. Ahmad Zahid bin Hamidi was formally charged on the 19th of October 2018 in the Kula Lumpur Sessions Court for allegations of money laundering, criminal breach of trust and bribery. Soon after, the case was transferred to the High Court where a prima facie case was subsequently established and the accused was called to enter into defence. Zahid’s legal team then submitted 11 representation letters to urge the AGC to drop the charges on the basis that the investigation was rushed, careless, premature, and incomplete. In short, Zahid alleged that he was a victim of selective prosecution from the previous regime.
The AGC, wary of the potential repercussions on its reputation and credibility decided to temporarily halt all the charges against the accused until a more thorough and comprehensive investigation is completed. It notes that it seeks to ensure that the accused’s rights are not denied and to prevent any miscarriage of justice due to the seriousness of the allegations. Hence, only a DNAA was requested by invoking Article 145(3) of the Federal Constitution which empowers the Attorney General to discontinue any proceedings for an offence at his discretion. As a result, the accused can still face trial for the same charges in the future if the prosecution decides to reinstate them.
However, Zahid’s legal team sought a full acquittal on the basis that no time frame was given for the completion of the investigations resulting in uncertainty. In such a case, the Court has traditionally taken the approach to grant a Discharge Amounting to an Acquittal (DAA) instead as it is unjust to the accused to have a charge hanging over their head unless the prosecution has a very good reason to do so.
However, the learned High Court Judge distinguished the cases relied upon by the defence by noting that those cases encompass situations where the prosecution did not state clearly why the accused should be granted a DNAA, unlike Zahid’s case where the prosecution listed at least 11 reasons. Additionally, the Federal Court case cited by the defence involved a situation where the trial had yet to start as no evidence had been presented to the court. This is in contrast to the present case where the prosecution had called a total of 99 witnesses while the defence called upon 15 defence witnesses thus far. Hence, as much precious judicial time and a great amount of taxpayers’ money has been expanded, it would be a waste of time and public funds to drop the charges entirely or if the prosecution in the near future decides not to proceed with the charges.
The Controversy
Although the powers of the Attorney General under Article 145(3) of the Federal Constitution and Section 254 of the Criminal Procedure Code to institute and withdraw charges at any time before judgment is passed is unquestioned, it still raises several eyebrows:
Timing of the application for a DNAA It is highly peculiar for a DNAA to be sought at such a late juncture (4 years after the accused was formally charged in court), especially on the basis that further investigations would have to be carried out, considering that a prima facie case has already been established, and the accused has been called to enter into defence. Although there have been rare but limited cases where this has been done in the past, the sheer gravity of the present case and its political repercussions undoubtedly gives rise to justifiable doubts about executive interference whether unwarranted or not. This is even more concerning if we are to analyse the specific chain of events that led to the request for a DNAA where the lead prosecutor was first forced into early retirement and was subsequently dropped from the case just a month prior. It is also more alarming that the application for the DNAA was made just a day prior to the previous AG’s final day in the office. This is coupled with the fact that the previous AG explicitly notes that he did not want to leave “this responsibility to his successor” and sought for the earliest possible date before his tenure expires as noted by Prime Minister, Anwar Ibrahim himself. The court’s hands were undoubtedly tied as they had no alternative but to decide on either a DNAA or an acquittal.
Lack of adequate explanation As noted by the Malaysian Bar Council President, Karen Cheah, “the recent media statement issued by the AGC dated September 5 was completely devoid of proper justifications as regards why it had requested for a DNAA. With the DNAA granted by the High Court, Zahid's counsel seized the opportunity to push for an outright acquittal instead of a DNAA”. UMLS echoes the views expressed by the Bar Council. In any case, the crux of the controversy lies in the lack of adequate explanation as to the AGC’s decision which left much room for speculation. Although the intention of the AGC may be in the right place, i.e. to prevent miscarriage of justice following the serious allegations made into the investigation itself, we strictly contend the manner in which the DNAA was sought as no proper timeline was given to complete the investigation. As a result, the accused and the public are left waiting anxiously if the case will ever see the light of day once more. Although justice must be done, it must also be seen to be done.
Unfettered discretion of the Attorney General The Attorney General is a part of the executive. He has unfettered discretion to halt the proceedings which in turn means such powers are open to abuse as there is a lack of adequate statutory limitations in place to limit such a discretion. As noted by former Lord President, Tun Mohamed Suffian in Long bin Samat & Ors. v Public Prosecutor (1974) 2 MLJ 152, the courts have no right to intervene in any decisions made by the Attorney General to prosecute or not prosecute a case, thereby granting the Attorney General the sole power in the country to prosecute cases with no means of redress. However, such discretion can be tainted by pressure from other members of the executive or high-ranking political officials. For example, in 2016, the former AG Tan Sri Abdul Gani Patail was removed from office following reports that he was involved with the special task force probing allegations of financial misappropriation in 1MDB. His successor, Mohamed Apandi Ali subsequently dropped the charges against former Prime Minister Najib Abdul Razak (who had appointed him) on the basis that there were no grounds for action. Such illustrations paint the notion that no individual should be accorded with unfettered discretion. Reforms are needed to (1) introduce statutory limitations in place to restrict the scope of discretion accorded to the Attorney General; and (2) promptly separate the AGC and the Public Prosecutor’s Office to prevent executive pressure and interference.
Our Stance
UMLS's stance is two-fold.
A thorough explanation of the AGC’s decision to request a DNAA at such a late stage of the proceeding As mentioned previously, the root of the controversy lies in the vague explanations given which led to much speculation. The AGC as a public official is duty-bound to provide a thorough explanation behind his decision, especially for such a high-profile political case. Anything less may potentially affect the public’s perception of the AGC’s ability to mete out justice.
Separation of the AGC and the Public Prosecutor’s Office There is a profound need for parliamentary amendments to ensure the independence of institutions like the Attorney General's Office and the Anti-Corruption Commission from political influence. This separation of roles, specifically between the Public Prosecutor and the Attorney General, is crucial for enhancing governance and transparency. Tommy Thomas, in his book 'Justice in the Wilderness,' acknowledged that while Article 145(5) of the Constitution designates the Attorney General's appointment by the YDPA, in practice, the Attorney General serves the Prime Minister. To achieve this separation of duties, legal amendments are necessary to redefine the powers of the Attorney General and the Public Prosecutor. Amendments to Article 145(3) of the Federal Constitution, Section 376(1) of the Criminal Procedure Code, and the definitions of 'public prosecutor' under the 1948 and 1967 Interpretation Acts are imperative. Upon reform, the Attorney General will serve as the government's chief adviser on commercial, civil, and international trade affairs, while the Public Prosecutor will head an independent prosecution agency accountable to Parliament. This reform was one of Pakatan Harapan's election promises. While it wasn't fulfilled during their first term, it's crucial to underscore its significance. After the 15th general election, the Unity government came to power, acknowledging the need for reforms. However, financial constraints were cited as a hindrance. Law Minister, Azalina Othman Said revealed plans for reforming the Attorney General's Office. In light of the Zahid case's controversy, the Unity government must prioritise this reform agenda to realise a truly transparent government. It's time for the government of the day to demonstrate strong political will and leadership on this front.
In short, we echo the words of former Chief Justice, Raja Tun Azlan Shah, “Every legal power must have legal limits, otherwise, there is dictatorship”.
Disclaimer:
The views and opinions expressed in this press statement do not necessarily reflect the official position of the Faculty of Law, Universiti Malaya and Universiti Malaya respectively. For the sake of conciseness, the UM Law Society has only selected a few issues to elaborate on, which may not represent the whole picture of the incident. The UM Law Society only intends to provide our collective view on this issue from an academic legal perspective.
UM Law Society (UMLS) 23/24
17 September 2023
Email: lawsocietyum@gmail.com
Website: www.umlawsociety.com
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