The Malaysian Bar is perturbed over the recent withdrawal by Deputy Public Prosecutor Dusuki Mokhtar of all 47 charges faced by Deputy PM Zahid Hamidi, upon receiving instructions from then attorney generali Idrus Harun, pursuant to Article 145(3) of the Federal Constitution and Section 254 (1) of the Criminal Procedure Code.
The DPP pointed to representations made by the defence in December 2022, alluding that there is a need for further investigation by the Malaysian Anti-Corruption Commission (MACC).
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 2022 general election, after the appointment of the priime 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 – less than a month ago – previous lead DPP Raja Rozela Raja Toran was reported to have requested for early retirement since 3 April, and therefore, could no longer lead the prosecution for Zahid’s trial. Idrus 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.
To further put it in context, it is also known that the current MACC chief commissioner’s tenure was extended for another year on 10 May, whereas Idrus’ tenure was also extended for another six months from 6 March. These dates, development of events, and actors in play, fuel much of the public uproar.
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What is unpalatable is that Zahid’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 to enter his defence on all 47 charges. This essentially means that the High Court found that a prima facie case had been established by the prosecution, thereby necessitating Zahid 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” on 4 September 2023.
The Malaysian Bar asserts that the Attorney General’s Chambers 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 discharge not amounting to an acquittal at such a late juncture after a prima facie case had already been established by the previous lead DPP.
The recent media statement issued by the Attorney General’s Chambers dated 5 September was completely devoid of proper justifications why it had requested for a discharge not amounting to an acquittal. With the discharge not amounting to an acquittal granted by the High Court, Zahid’s counsel seized the opportunity to push for an outright acquittal instead of a discharge not amounting to an acquittal.
Let us be clear and make no mistake about it: the learned High Court Judge had no alternative but to decide on either a discharge not amounting to an acquittal or an acquittal. It therefore rings hollow for the Attorney General’s Chambers to wholly attribute the withdrawal of the case to the High Court and to use that as a reason in its media statement, instead of providing a detailed explanation.
The High Court judge in this case 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 attorney general 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’s trial shall be reinstated and continued as if no such order for a discharge not amounting to an acquittal had been given.
In the recent past, there have been cases where criminal charges against certain politicians were dropped by the Attorney General’s Chambers amidst trial, reportedly following “instructions” or as a result of representations. 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 Najib Razak is facing, and his wife 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.
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 Attorney General’s Chambers, where the roles of the attorney general 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 attorney general 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, announced it will undertake a comprehensive empirical study within a year before finalising the proposed separation of the attorney general’s office from the public prosecutor’s office.
The Zahid 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 is president of Malaysian Bar
This piece is reproduced from here and has been edited for style only.