Malaysian Bar criticises AGC and MACC amid Zahid Hamidi trial controversy

Cheah, Malaysian Bar president

MALAYSIA: The Malaysian Bar says the Attorney General’s Chambers (AGC) has tarnished its own reputation and credibility as the prosecuting party, and that of the Malaysian Anti-Corruption Commission (MACC) as the investigating body, when it applied for a discharge not amounting to an acquittal (DNAA) “at such a late juncture” after a prima facie has already been established in the corruption trial of Malaysia’s Deputy Prime Minister Datuk Seri Ahmad Zahid Hamidi.

In a statement on Thursday (7 Sept), the lawyers’ association said the media statement issued by the AGC on Tuesday was completely devoid of proper justifications as regards to why it had requested for a DNAA for the deputy prime minister.

“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 DNAA 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,” said Malaysian Bar president Karen Cheah Yee Lynn.

On Monday (4 Sept), Deputy Public Prosecutor (DPP) Datuk Mohd Dusuki Mokhtar had applied to the High Court for the withdrawal of all 47 charges faced by Zahid, upon receiving instructions from then-attorney general Tan Sri Idrus Harun.

The DPP referred to representations made by the defence in December 2022, saying there is a need for further investigation by the MACC.

Cheah noted that Justice Collin Lawrence Sequerah had lamented that should the prosecution decide in the near future to not proceed with any further charges, then much precious judicial time and a great amount of taxpayers’ money would 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 Hamidi’s trial shall be reinstated and continued as if no such DNAA order had been given,” she said.

Cheah noted that in the recent past, there have been cases where criminal charges against certain politicians were dropped by the AGC 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 Datuk Seri Najib Razak is facing, 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,” the Bar president said.

Cheah said there must be real political will to carry out a complete revamp of the structure within the AGC 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,” she said.

The Malaysian Bar noted that the current government had recently 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,” said Cheah.

The prosecution has withdrawn all 47 charges of criminal breach of trust, graft, and money laundering against Zahid. The High Court judge granted a DNAA rather than a full acquittal, meaning the charges could be reinstated in the future.

The decision ends a lengthy trial that lasted almost four years, involving 99 witnesses.

The prosecution cited ongoing investigations as the reason for the DNAA and mentioned a Royal Commission of Inquiry (RCI) related to a former Attorney General’s memoir.

Zahid had previously been acquitted of separate graft charges, and he sent letters of representation regarding those charges to the Attorney General’s Chambers.

On Thursday (7 Sept), the Coalition for Clean and Fair Election (Bersih) criticised Zahid for remarks during a Pulai by-election campaign.

Zahid seemed to link a housing project’s approval to the victory of a Pakatan Harapan (PH) candidate, prompting a police report and allegations of undue influence and bribery.

Bersih called for an investigation, citing violations of election laws and urged Prime Minister Anwar Ibrahim to oversee Cabinet members’ conduct.

They emphasised the need for clear guidelines to prevent the misuse of government resources for campaigning.

The Pulai by-election was triggered by the passing of former Minister Salahuddin Ayub and involves a three-cornered contest.

The campaign period for the by-election commenced on 26 August, setting the stage for a three-cornered contest featuring PH candidate Suhaizan Kaiat, Perikatan Nasional (PN) candidate Zulkifli Jaafar, and independent candidate Samsudin Mohamad Fauzi.

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