Legal issues on granting of discharge not amounting to acquittal to Riza Aziz

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Riza Aziz - Photo: Alex Berliner/ABImages/Wikipedia

The Malaysian Bar wishes to make some observations on the legal issues surrounding the reports that Riza Aziz, stepson of former Prime Minister Najib Razak, has been granted a discharge not amounting to acquittalsubject to terms and conditions.

It is the attorney general that acts qua the role of the public prosecutor by virtue of Article 145(3) of the Federal Constitution, and this power is executed by the solicitor general and deputy public prosecutors in criminal trials by virtue of Section 376 of the Criminal Procedure Code.

These provisions give the public prosecutor the ultimate discretion to determine, inter alia, the direction of criminal proceedings.

In the present case concerning Riza Aziz, the charges against, and the process that set this chain of events in motion, from the first representation made by Riza Aziz’s lawyers until the agreement was reached, have been set out by the current Attorney General/Public Prosecutor, Idrus Harun, through his media release.

Prima facie, these events seem to be in consonance with the law, as Section 92 of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 allows for offences to be compounded by authorities with the consent of the public prosecutor.

The decision to apply for an order of discharge not amounting to an acquittal (DNAA) lies with the attorney general/public prosecutor who has the power to decline to prosecute further at any stage of the trial under Section 254 of the Criminal Procedure Code.

This power, exercisable by the attorney general/public prosecutor, is similar to the power to stay proceedings in English courts, known as the power to enter a nolle prosequi. Such an order directs the discharge of an accused person without acquitting him.

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As was held in the long-established case of Teh Cheng Poh v PP, “”There are many factors which a prosecuting authority may properly take into account in exercising its discretion … The existence of those factors to which the prosecuting authority may properly have regard and the relative weight to be attached to each of them may vary enormously between one case and another.… ”

The factors that ought to be taken into account must be dictated by wisdom, relevant consideration and driven by facts and public interest.

Therefore, it can be said that the case concerning Riza Aziz is still very much in its early stages of settlement, as he is still expected to fulfil all the agreed terms and conditions. In the event of his failure to do so, he may be re-charged and prosecuted for the same offences.

Salim Bashir is president of the Malaysian Bar

This piece is reproduced from here and has been edited for style only.

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HH Lim
HH Lim
20 May 2020 1.20pm

The crucial question in the instant case is not whether the AG has the power (which he clearly has) to grant the conditional discharge but whether he has used his constitutionally-granted powers properly. The reader’s mind should not be as shackled by the law as to fail to raise the latter question. The power of the AG is unquestionable, but its use in this case appears highly questionable if (as former AG Tommy Thomas says) the imposed conditions as listed by the current AG only require Riza to give up things that he has already given up to US authorities and that would be returned in due course to the Malaysian government. Is the nation’s interest served in any way by giving Riza a discharge effectively for free?