From Ibrahim M Ahmad
This week’s news cycle began with a jolt after the High Court granted deputy prime minister Ahmad Zahid Hamidi a discharge not amounting to an acquittal (DNAA) in a case which called for him to answer 47 corruption charges involving substantial funds belonging to his charitable foundation, Yayasan Akalbudi.
What that means is that the case is now somehow suspended indefinitely, capable of being revived, but probably unlikely to be.
Instead, from here on we can expect Zahid’s lawyers to relentlessly pursue the full acquittal he was denied in court on Monday.
Make no mistake, the law allows the attorney-general (AG) to make the request he did.
Article 145(3) of the Federal Constitution confers on the AG the power, exercisable at his discretion, to institute, conduct and discontinue any proceedings for an offence.
A long line of legal authority dating back almost half a century to the judgment of Lord President Suffian Hashim in the case of Long Samat v. Public Prosecutor (1974) establishes that the AG’s exercise of that discretion is not subject to review by the courts.
“Courts cannot compel (the AG) to institute any criminal proceedings which he does not wish to institute or to go on with any criminal proceedings which he has decided to discontinue,” Suffian said then.
By and large, a DNAA is normally requested if the prosecution feels it has insufficient evidence to secure a conviction and that further investigations are warranted. Yet, this was not such a case.
Justice Collin Lawrence Sequerah had already ruled in January last year that the prosecution had successfully proved a prima facie case against the Umno president. The onus was then on Zahid to raise a reasonable doubt in the prosecution’s case to establish his innocence.
Alarm bells started ringing two weeks ago when, seemingly out of the blue, Zahid’s lawyers called a press conference to publicly urge the AG to respond to two sets of representations they had filed on the deputy prime minister’s behalf in January and February this year.
Monday’s proceedings show the AG finally relented, but his decision is not one many will understand, let alone accept. For one, as said earlier, a prima facie case has already been made out against Zahid.
Another reason is this. The term of office of the current AG, Idrus Harun, was due to end today, Sept 5, the very next day after Monday’s court appearance. It would be impossible for the man in the street not to question whether this was some kind of parting gift from Idrus to Zahid.
Or, was this a decision taken by incoming AG Ahmad Terrirudin Salleh? But Terrirudin is only scheduled to take office on Wednesday, Sept 6.
One would have expected the prosecution on Monday to have requested that the incoming AG be given time to review the matter once officially installed.
Surely, Terrirudin could not have made the decision prior to his appointment. That would be wrong. After all, justice must not only be done, it must be seen to be done.
To allow the withdrawal of such a high-profile case right smack at the point of handover of the top prosecutor’s office without proper explanation from either the incumbent or the incoming AG to the public at large makes a mockery of the legal system. After all, this case has spanned 77 trial days over almost four years and seen 114 witnesses testify at enormous expense to the taxpayer.
Such actions suggest that the country will probably not see the change it was looking forward to under the Madani government after all.
Loud calls to reform the AG’s office by separating the offices of advisor to the government and public prosecutor, and by the removal of the unbridled and seemingly uncheckable power granted solely to him by law have fallen on deaf ears.
To be fair, in March, Prime Minister Anwar Ibrahim acknowledged in Parliament the necessity for these reforms, but said financial constraints prevented the country from moving on the matter.
So, reforms may be a long way off, but does that also mean that the rakyat is not entitled to an explanation as to why Zahid was let off the hook?
As the advisor to the government, the AG takes instructions from the prime minister. That being the case, Anwar should order that he explain publicly why a DNAA was secured for Zahid.
Failing that, Anwar should advise the Yang di-Pertuan Agong, who appoints the AG, to instruct him to furnish the required explanation.
One way or the other, the rakyat needs to know immediately.
Ibrahim M Ahmad is an FMT reader.
The views expressed are those of the writer and do not necessarily reflect those of FMT.