I DO not know how you feel about this: the concentration and exercise of power over life and death in the hands of one man on earth, the public prosecutor.
I, for one, feel uncomfortable and concerned. Tell you why, later.
Early this week, many people including some legal practitioners in Kuching whom I talked to were surprised to learn that the proceedings in respect of all 47 criminal charges pressed against Deputy Prime Minister Datuk Seri Dr Ahmad Zahid Hamidi were halted midway.
Legal experts in Malaysia have been debating: who decided to grant the ‘Discharge Not Amounting to Acquittal’ (DNAA) – the Judge, or the Attorney General?
Public perception of this particular situation is that the prosecutor is more powerful than the judge.
According to the report by the Malay Mail, which was quoted by The Borneo Post (Sept 9, 2023), it was the Attorney-General who had proposed to the court that the accused be discharged not amounting to acquittal.
The judge, according to a legal opinion, is constrained by Section 254 of the Criminal Procedure Code. He had to grant DNAA as requested or an acquittal.
I am anxious to hear of more opinions on this issue. No one has come forward with any, so far.
In such a situation, any one accused of committing a serious crime would have jumped for joy, never mind that the verdict is not a 100 per cent acquittal. His lawyers will start working on an appeal for the verdict of ‘Not Guilty’.
If the accused wins the final appeal, he cannot be charged again in the future for the same offences.
Anybody in the circumstances would lodge an appeal without delay.
The accused person tagged with DNAA is not out of the woods yet, though the grant of DNAA is undoubtedly a great relief indeed.
Many Malaysians would be grateful if the prosecutor would disclose to the public the reason(s) or the rationale for the decision to halt the proceedings. Apparently, according to some legal opinion, he is not obliged to do so.
So we may never know of the rationale for the discontinuance of the trial.
Many readers of my column are wondering if this case would one day be cited as a precedent, binding on the next case of similar facts and circumstances.
Many also wonder if this is not a political move initiated by some quarters, and which has left the Attorney-General with no choice but to toe the political line.
There may be more than that meets the eye. I am not going into this dangerous territory; readers have the freedom of imagination.
However, the public perception is inevitably that the Attorney-General, endowed with such awesome power by the Constitution and Section 254 of the Criminal Procedure Code (CPC) would be one of the most powerful men in Malaysia.
Importance of prima facie
Foremost in the mind of every deputy public prosecutor is the prima facie of each case which he handles. In each and every 47 charges in the Yayasan Akalbudi case, there must have been established a prima facie; otherwise the charges would not have been made.
According to the Oxford Dictionary of Law: “A prima facie case is one that has been supported by sufficient evidence for it to be taken as proved should there be no adequate evidence to the contrary… It is a prosecution case that is strong enough for the defendant to answer it.”
If I were the judge at the High Court level, I would have allowed the proceedings to continue until both the prosecution and the defence had completed their respective submissions.
Had I the power, I would eventually deliver my judgment one way or the other. Whatever the verdict, there would be the right of appeal by the party not happy with the verdict.
In fact, the system is in place: appeals may go up to the level of the apex court. In the past, appeal cases from Malaysia went up as far as the highest court of appeal, the Privy Council in England (no longer possible).
Not having the benefit of reading the actual judgment of the judge relating to the grant of DNAA to Ahmad Zahid, the lay readers of this column imbued with common sense are asking: “Has a judge of any court in Malaysia the authority to ignore the power of the prosecutor to halt proceedings midway?”
They know that the power to halt proceedings is conferred upon the Attorney-General by the Federal Constitution of Malaysia, and that power is fortified by Section 254 of the Criminal Procedure Code.
It is a question of whether or not the public prosecutor would choose to exercise that power.
Why did he decide to act as he did? Those readers who have any doubts of the power and the Attorney-General, please read the relevant provision of the constitution.
Article 145 of that constitution states:
(1) The Yang di-Pertuan Agong shall, on the advice of the Prime Minister, appoint a person who is qualified to be a judge of the Federal Court to be the Attorney General for the federation;
(2) It shall be the duty of the Attorney-General to advise the Yang di-Pertuan Agong or the Cabinet or any Minister upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Yang di-Pertuan Agong or the Cabinet, and to discharge the functions conferred on him by or under this Constitution or any other written law;
(3) The Attorney-General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah Court, a native court or a court martial.”
I must admit that I have not read the decision/judgment of the Kuala Lumpur High Court.
Subject to correction, for what it is worth, my opinion is that the Attorney-General or whoever was in charge of prosecutions in those 47 cases should have refrained from discontinuing with the trial.
I would have allowed the prosecutors to complete the task at hand, convince the Judge that they had proven each charge beyond any reasonable doubt and then, leave the job of judging to – who else – the Judge.
I think the lay public would have appreciated this transparency as being the normal practice; they would not have any room for speculation.
You cannot stop people from speculating. They have heard it said: “Justice must not only be done, but must be seen to be done.”
Against the background of endless politicking in Peninsular Malaysia, perhaps, there is more than meets the eye.
At the beginning of this column, I promised to tell you why I was uncomfortable with the concentration of power in the hands of an Attorney-General.
I am addressing the Prime Minister as a statesman. Isn’t it wiser for him to appoint one person as a public prosecutor and another man/woman as the legal advisor to the government?