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Zahid’s DNAA: Political expediency and need to separate public prosecutor’s role from attorney general

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The Center to Combat Corruption and Cronyism (C4 Center) notes with great dismay the abrupt end to Deputy Prime Minister Zahid Hamidi’s Yayasan Akalbudi trial.

Deputy public prosecutor (DPP) Dusuki Mokhtar successfully applied for a discharge not amounting to an acquittal with respect to Zahid’s 47 charges for criminal breach of trust, bribery and money laundering.

This trial, which began in November 2019, had gone on for 77 days – with 99 prosecution witnesses and 15 defence witnesses having testified, numerous postponements and a recent change in the lead prosecutor throughout its duration.

The decision to discontinue the prosecution was made after a prima facie case was made out against Zahid and he was ordered to enter his defence on all 47 charges. This means the prosecution had already proved through credible evidence each ingredient of the offences Zahid was charged with which would warrant a conviction if unrebutted or unexplained. In other words, the prosecution had already proved their case against Zahid at this stage.

Therefore, the explanation given by the DPP to substantiate the application for a discharge not amounting to an acquittal – ie that new matters have been raised by Zahid’s letters of representation to the Attorney General’s Chambers (AGC) which must be investigated – is insufficient to justify the discontinuance of the prosecution.

Were the matters raised in these letters of representation not considered or available at the outset of the case? After all, at this stage of the prosecution, it is the role of the defence to raise reasonable doubts in the prosecution’s case. If any of these new issues and facts do indeed rebut or explain elements of the prosecution’s evidence, it should then fall upon the court to acquit Zahid on the basis that his guilt has not been proved beyond a reasonable doubt.

Moreover as Justice Collin Sequerah noted in his judgment on the matter, the decision to discontinue the proceedings at this stage is a considerable wastage of judicial time and taxpayer money, which raises even more uncertainty as to the pressing need for this discontinuance.

Therefore, the Attorney General’s Chambers bears a heavy burden to provide a comprehensive explanation to the Malaysian public on why exactly this decision has been made.

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Further, Home Minister Saifuddin Nasution Ismail’s statement that the choice to grant the discharge not amounting to acquittal to Zahid was the court’s decision, is misguided and places the responsibility of this matter upon the wrong party.

According to Article 145(3) of the Federal Constitution, the power to institute, conduct or discontinue proceedings for most offences lies with the attorney general – who also holds the office of the public prosecutor pursuant to Section 376 of the Criminal Procedure Code – at his or her discretion.

Additionally, Section 254 of the Criminal Procedure Code specifies that the public prosecutor may decline to further prosecute an accused person, if they think fit, at any point prior to the delivery of judgment.

Thus, the decision to apply for the discharge not amounting to acquittal is squarely within the discretion of the attorney general, who is a member of the executive branch of government. Naturally, the fact that Zahid is currently a critical part of the executive branch does not escape scrutiny.

This is a key example of the danger inherent when the offices of the attorney general and the public prosecutor are not separated, as there is the inevitable possibility that decisions regarding prosecutions of key political figures may be made upon considerations aside from the demands of justice.

C4 Center notes that the outgoing attorney general, Idrus Harun, has gone on leave, and in his absence the current solicitor general and incoming attorney general, Ahmad Terrirudin, is acting as the public prosecutor until the beginning of his tenure on 6 September, pursuant to Section 376(2) of the Criminal Procedure Code.

However, we maintain that a decision of this magnitude should not have been made during an interim period in the attorney general-cum-public prosector’s office, as it leads to speculation about who exactly is responsible for deciding to apply for a discharge not amounting to acquittal in this case.

The implications of this decision are severe – discharging a sitting deputy prime minister, who is also the leader of a crucial coalition member of the Anwar administration, at a stage of his prosecution where a credible case has already been made out against him, with seemingly groundless justifications, clearly leads to doubt in the integrity of this nation’s criminal justice system.

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Bearing in mind the fact that the decision to apply for the discharge not amounting to acquittal stems solely from the attorney general in particular as well as the executive by extension, to what extent can political stability and expedience be used to justify decisions which directly contradict this administration’s professed commitment to combating corruption?

Is this evidence that there are certain individuals who are wholly immune from the consequences of their actions, simply by virtue of their perceived ‘importance’?

Does this mean that one might be absolved of previous instances of corruption and abuse of power if they opt to align themselves with the ‘correct people’, and if so, will this not lead to a culture of impunity within the upper echelons of national leadership?

Is the continued presence of a single individual tainted with allegations of corruption within the current administration important enough to override basic principles of fairness and justice?

These are all important questions which the Anwar administration must consider in determining a path moving forward, as they risk losing the very narrative that brought them into power in the first place.

That said, there is a potential option for the government to select which would at least remedy the losses caused to the nation’s coffers by corruption: entering plea deals or reconciliation agreements with high-profile figures accused of these offences, which would enable stolen funds to be returned in exchange for amnesty from further prosecutions.

An example of this sort of arrangement was seen with the discharge not amounting to acquittal granted to Riza Abdul Aziz in 2020 upon his money laundering charges, where an agreement was reportedly reached between the prosecution and Riza, wherein the latter would hand over several million ringgit to the federal government in exchange for the discharge. Similar instances where reconciliation agreements were employed to address corruption have occurred in nations such as Angola, Egypt and Tunisia.

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These arrangements enable the state to recover illicitly removed assets while also avoiding resource-intensive high-profile prosecutions. Therefore in the interest of political stability, the Anwar administration may consider establishing an extra-judicial reconciliation commission tasked with investigating allegations of grand corruption against key political figures. Where a case is made out or where an individual wishes to admit their guilt, the commission may grant amnesty in exchange for restitution of stolen assets and a publicly announced commitment to institutional reforms.

This sort of arrangement is admittedly a suboptimal choice, as it could be perceived as a failure of justice and a breeding ground for impunity. If this government wishes to serve the best interests of this nation and its people, it must do better than repeat the patterns of its sordid past by simply allowing those accused of corruption to walk away scot-free.

The Anwar administration should at least take into consideration the option of reconciliation if it is deemed absolutely necessary and if other options are not feasible or practicable. That said, we invite the government to also consider the boundaries of political necessity, justice, and the duties they owe to the people.

Therefore, C4 Center calls for the following:

  • Immediate separation of the offices of the attorney general and the public prosector, to prevent the influence of political considerations in prosecutorial decisions and discretion
  • Given that the justifications provided by DPP Dusuki Mokhtar in court for the application for a discharge not amounting to acquittal are insufficiently substantiated, the attorney general must publicly provide a full explanation outlining the grounds supporting the decision. If the grounds are indeed too scarce to support the decision, the charges against Zahidi ought to be reinstated
  • The Attorney General’s Chambers must create a prosecutorial code of conduct to clearly stipulate the principles prosecutors should follow when conducting prosecutions and exercising their discretion to discontinue cases, similar to the UK’s Code for Crown Prosecutors.

– C4 Center

The views expressed in Aliran's media statements and the NGO statements we have endorsed reflect Aliran's official stand. Views and opinions expressed in other pieces published here do not necessarily reflect Aliran's official position.

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