On 12 December, the Attorney General’s Chambers withdrew the appeal against the Shah Alam High Court’s decision to acquit and discharge Deputy PM Zahid Hamidi from 40 charges of corruption in connection with the foreign visa system (VLN) on the grounds that no prima facie case had been established against Zahid at the end of the prosecution’s case.
Subsequently, the Court of Appeal struck out the prosecution’s appeal, effectively upholding Zahid’s acquittal.
The Center to Combat Corruption and Cronyism (C4 Center) is concerned with the continued reversals of the Attorney General’s Chambers in the process of conducting prosecutions against high-profile politicians. These reversals absolve high-profile politicians of legal accountability and lead to a wastage of public funds and judicial time.
Reasons for withdrawal
According to the deputy head of the appellate and trial division of the Attorney General’s Chambers, Yusaini Amer Abdul Karim, the reason for the withdrawal was that the chambers believed there was a “strong legal and factual basis to uphold the High Court’s decision”. This was after considering the case in its entirety, including the High Court’s decision and two letters of representation submitted by Zahid.
Among the reasons submitted by the Attorney General’s Chambers to the Court of Appeal for the withdrawal of the appeal were that:
- the chambers found no evidence that Zahid directly used his position to award the contracts which formed the basis of the alleged offence
- the contracts were awarded before Zahid became home minister (thereby denying him the opportunity to commit the abuse of power alleged)
- no evidence showed that money was handed over by the witnesses to Zahid
If this truly is the case, how and why were these salient considerations not addressed before the prosecution commenced?
Were these facts not available at the time, and if so, given the fundamental nature of these facts to the subject matter of the charges against Zahid, was it appropriate to charge Zahid in the first place?
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Was there sufficient evidence at the outset for charges to have been preferred against Zahid?
It must be noted that the function of prosecutors in operationalising criminal justice is not to secure convictions by any means necessary, but to ensure that justice is upheld.
Where charges are unfounded or unsubstantiated, it should not be the prosecutors’ role to proceed with the case. Justice is not served when an individual is prosecuted regardless of the circumstances.
Thus, the question remains: why was the decision to prosecute Zahid made if the stated issues were present at the time?
Alternatively, if the stated issues were not known to the Attorney General’s Chambers at that time, was the decision to prosecute Zahid a premature one with insufficient investigations made into the matter?
Either way, the chambers has an obligation to answer to the public for the confused manner this case has been handled thus far.
Charges also withdrawn for Yayasan Akalbudi trial
Similarly on 4 September 2023, the prosecution decided to withdraw all 47 charges of criminal breach of trust, corruption and money laundering against Zahid in connection with the Yayasan Akalbudi controversy.
However, in this instance, a prima facie case had been successfully established by the prosecution and Zahid was called to enter (and had entered) into a defence.
The High Court judge accordingly granted a discharge not amounting to an acquittal, given that the courts do not have the discretion to refuse such an application by prosecutors.
Dusuki Mokhtar, the then deputy public prosecutor (now the acting attorney general) told the High Court judge that he had received instructions from the then attorney general to discontinue the charges against Zahid.
The Attorney General’s Chambers requested for a discharge not amounting to an acquittal on the grounds that investigations against Zahid were ongoing after considering his letters of representation to the chambers and the Malaysian Anti-Corruption Commission (MACC).
Reasons for discontinuing the Yayasan Akalbudi trial
Dusuki subsequently provided 11 reasons for the request for Zahid’s discharge not amounting to an acquittal. They included the fact that Zahid had submitted several letters of representation to the Attorney General Chambers and the MACC which required further investigation and to prevent allegations of a miscarriage of justice, the denial of the right to fair trial, and selective prosecution.
Once again, the question arises as to why these considerations were not accounted for prior to the initiation of the prosecution.
These alleged reasons are also doubtful because the prosecution had at that point proved a plausible case against Zahid to the satisfaction of the court.
Political appointee
These two instances and the prosecutorial decisions made therein highlight an important observation: the fact that Zahid is free of the criminal charges brought against him. This is, to a considerable extent, due to the decisions made by the attorney general, who is also the public prosecutor by virtue of Article 145 of the Federal Constitution read with Section 376 of the Criminal Procedure Code.
Such instances where criminal prosecutions against high-profile politicians have been dropped, discharged or discontinued on the grounds of the Attorney General’s Chambers’ neglect, failures or complacency in conducting trials are not uncommon.
On 27 November 2024, former Prime Minister Najib Razak and former treasury secretary general Mohd Irwan Serigar Abdullah were granted a discharge not amounting to an acquittal for six charges of criminal breach of trust involving the International Petroleum Investment Company case. This was because the prosecution had failed to furnish 200 sets of documents necessary for them to prepare their defences.
Another notable instance was the 1MDB audit tampering trial: the acquittals of Najib and former 1MDB CEO Arul Kanda were left unchallenged due to the prosecution’s failure to file the petitions of appeal promptly.
The attorney general, who is also the public prosecutor, is meant to serve as the protector of the public interest and plays a significant role in upholding the integrity of the criminal justice system in Malaysia.
Therefore, when conducting criminal proceedings, the attorney general-public prosecutor must hold himself to a high standard of professionalism without fear or favour in order to maintain public trust and confidence, and ultimately commit to upholding the rule of law and spirit of justice.
However, the fact that the attorney general is appointed to his office on the binding advice of the prime minister reveals an underlying problem: the attorney general is essentially a political appointee.
Because the attorney general-public prosecutor does not enjoy constitutional protections such as security of tenure akin to that of judges, he lacks the structural independence necessary to protect his operations from the direct or indirect influence of the PM.
This is reflected in the consistent shortcomings of the Attorney General’s Chambers in conducting criminal proceedings against high-profile politicians for corruption-related offences. These shortcomings only serve to worsen the perception of bias and suspicion of political interference in prosecutorial functions.
The impression that politicians are treated more favourably than ordinary people in criminal prosecutions for corruption-related offences sends a detrimental message to the public – that the Malaysian legal system is unequal, unfair and unjust, further undermining the credibility of public institutions such as the Attorney General’s Chambers.
Do not delay reforms
C4 Center urgently demands that the government expedite the long overdue reform of separating the office of the public prosecutor from that of the attorney general.
We understand that the legal affairs division of the Prime Minister’s Department is currently undertaking efforts to develop this reform agenda.
However, the government must understand that the public’s trust deficit will only increase as long as the separation is not completed. It must ensure that the prosecuting office is functionally and institutionally independent from any direct, indirect or perceived influence from the executive. This will not be the case when the attorney general enjoys near absolute discretion to conduct, institute and discontinue criminal proceedings.
Additionally, the Attorney General’s Chambers is strongly urged to establish a robust framework of prosecutorial guidelines, codes of practice, and policies to guide the conduct of criminal prosecutions, particularly when the accused person is a “politically exposed person”, such as current or former politicians. This would ensure a level of transparency in the workings of the chambers in exercising its prosecutorial duties, thereby allowing for stronger public trust in the integrity of our criminal justice system. – C4 Center
- Tegakkan maruah serta kualiti kehidupan rakyat
- Galakkan pembangunan saksama, lestari serta tangani krisis alam sekitar
- Raikan kerencaman dan keterangkuman
- Selamatkan demokrasi dan angkatkan keluhuran undang-undang
- Lawan rasuah dan kronisme
Slm Msia. Most disturbing. Yes. Many questions have gone unanswered. The Rakyat-taxpayers need to be given Right answers. Society at large is concerned of the future of Msia.Are we just worshippers of money, grandiose life-styles, forgetting meaning and accountability to God??
Was this not expected? Bless all