A FEW months ago, Hafiz Hassan penned his view of Zahid Hamidi’s discharge not amounting to an acquittal (DNAA) and questioned if the public was willing to support a judicial review. 

His challenge has been answered as the Bar Council has done exactly that. 

If one were to follow Zahid’s case, it is clear that the attorney-general (AG) applied for a DNAA at the defence stage, citing newly discovered evidence. At this juncture, a prima facie case was established.  

Withdrawing the case at the defence stage is not unprecedented, since a similar approach was taken in the Siti Aisyah v Public Prosecutor [2019] 4 MLJ 46 case, where the prosecutor applied to drop murder charges against the accused under s254(1) of the Criminal Procedure Code. 

However, what fell short was the AG’s explanation of why these charges were withdrawn.   

In Malaysia, the prerogative power held by the AG under Article 145(3) of the Federal Constitution was once unjusticiable. It can now be challenged since the Federal Court’s decision in the Sundra Rajoo a/l Nadarajah v Menteri Luar Negeri, Malaysia case. Thus, the discretion to commence or discontinue any proceeding is amendable by judicial review. 

Any challenge against the AG’s decision must first pass the two-step threshold. Although the AG’s powers may be reviewed, the leave granting one will only be given under appropriate circumstances.   

It is for the Bar Council to show that it has the legal basis to challenge the decision of the AG based on illegality, procedural impropriety, irrationality, or other factors.  

If these thresholds are fulfilled, the burden will shift to the AG to justify his actions. – December 5, 2023. 

Matilda George reads The Malaysian Insight.  

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.