C4: Perception of bias continues to erode faith in Malaysian criminal justice system

 

ON Dec 12, the Attorney-General’s Chambers (AGC) withdrew the appeal against the Shah Alam High Court’s decision to acquit and discharge the Deputy Prime Minister Datuk Seri Ahmad Zahid Hamidi from 40 charges of corruption in connection to the Foreign Visa System (VLN) on the grounds that no prima facie case was 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 Centre to Combat Corruption and Cronyism (C4) is concerned with the continued reversals of the AGC in the process of conducting prosecutions against high-profile politicians, absolving them of legal accountability and simultaneously leading to the wastage of public funds and judicial time.

Reasons for the withdrawal of the appeal

According to deputy head of the appellate and trial division of the AGC, Datuk Yusaini Amer Abdul Karim, the reason for the withdrawal was that after considering the case in its entirety, including the High Court’s decision and two letters of representation submitted by Zahid, the AGC is of opinion that there is a “strong legal and factual basis to uphold the High Court’s decision”.

Among the reasons submitted by the AGC to the Court of Appeal for the withdrawal of the appeal were that the AGC found no evidence showing that Zahid had directly used his position to award the contracts which formed the basis of the alleged offence, that the contracts had been awarded before Zahid assumed the position of Home Minister (thereby denying him the opportunity to commit the abuse of power alleged), and that there was no evidence to show that money was handed over by the witnesses to Zahid.

Datuk Seri Dr Ahmad Zahid Hamidi (Image: Bernama)

If this truly is the case, how and why were these salient considerations not taken into account before the prosecution was 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 for Zahid to have been charged in the first place?

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 simply because one 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 AGC at the time, was the decision to prosecute Zahid a premature one with insufficient investigations into the matter?

Either way, the AGC has an obligation to answer to the public for the confused manner in which this case has been handled thus far.

Charges were also withdrawn for the Yayasan Akalbudi trial 

It is worth mentioning that similarly on Sept 4, 2023 the prosecution decided to withdraw all 47 charges of criminal breach of trust, corruption and money laundering against Zahid in connection to 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) defence.

The High Court judge accordingly granted a discharge not amounting to an acquittal (DNAA), given that the courts do not have the discretion to refuse such an application by prosecutors.

Datuk Mohd Dusuki Mokhtar, the then deputy public prosecutor (now the acting Attorney General [AG]), told the High Court judge that he had received instructions from the then AG to discontinue the charges against Zahid.

The AGC had requested for a DNAA on the grounds that investigations against Zahid are still ongoing after considering his letters of representation to the AGC and the Malaysian Anti-Corruption Commission (MACC).

The AG, a political appointee, is also the Public Prosecutor (PP)

These two instances and the prosecutorial decisions made therein highlight one important observation: the fact that Zahid is free of the criminal charges brought against him is, to a considerable extent, due to the decisions made by the AG, who is also the PP by virtue of Article 145 of the Federal Constitution read with Section 376 of the Criminal Procedure Code.

Attorney-general Datuk Mohd Dusuki Mokhtar (Image: TheSun)

Such instances where criminal prosecutions against high-profile politicians have been dropped, discharged and/or discontinued on the grounds of the AGC’s neglect, failures or complacency in conducting the trials are not uncommon.

The AG, who is also the PP, is meant to serve as the protector of public interest and plays a significant role in upholding the integrity of the criminal justice system in Malaysia.

Therefore, when conducting a criminal proceeding, the AG/PP must hold themselves 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 very fact that the AG is appointed to his office on the binding advice of the Prime Minister (PM) reveals one underlying problem: the AG is essentially a political appointee.

In light of the fact that the AG/PP does not enjoy constitutional protections such as security of tenure akin to that of judges, the AG/PP lacks the structural independence necessary to protect their operations from direct and/or indirect influence of the PM.

This is reflected by the consistent shortcomings of the AGC in conducting criminal proceedings against high-profile politicians for corruption-related offences, which only serve to exacerbate the perception of bias and suspicion of political interference in prosecutorial functions.

The impression that politicians are treated more favourably than ordinary citizens in criminal prosecutions involving corruption-related offences would send a detrimental message to the public at large that the Malaysian legal system is unequal, unfair and unjust, further undermining the credibility of public institutions such as the AGC.

Separating offices of AG and PP

C4 Centre urgently demands that the government expedite the long overdue reforms of separating the office of the Public Prosecutor from 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 is imperative to 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 AG/PP enjoys near absolute discretion to conduct, institute and discontinue criminal proceedings.

Additionally, the AGC is strongly urged to establish a robust framework of prosecutorial guidelines, codes of practice and/or 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 ensures a level of transparency in the workings of the AGC in exercising its prosecutorial duties, thereby allowing for stronger public trust in the integrity of our criminal justice system. – Focus Malaysia