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 acquittal subject to terms and conditions.
It is the attorney general who acts as public prosecutor by virtue of the Federal Constitution, and this power is executed by the solicitor-general and deputy public prosecutors in criminal trials by virtue of the Criminal Procedure Code.
These provisions give the public prosecutor the ultimate discretion to determine the direction of criminal proceedings.
In the present case concerning Riza, the charges against, and the process that set this chain of events in motion, have been set out by the current attorney-general cum public prosecutor, Idrus Harun, through his media release.
These events seem to be in consonance with the anti-money laundering law, which 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 lies with the attorney-general who has the power to decline to prosecute further at any stage of the trial. This power is similar to the power to stay proceedings in English Courts. Such an order directs the discharge of an accused person without acquitting him.
In the long-established case of Teh Cheng Poh v PP, it was held that “there are many factors which a prosecuting authority may properly take into account in exercising its discretion”. 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 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 the president of the Bar Council. - FMT
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