MALAYSIA Tanah Tumpah Darahku


Saturday, September 30, 2023

Restrict AG’s power to withdraw charges at defence stage, says lawyer

Lawyer Salim Bashir says amendments to restrict the attorney-general’s power to discontinue criminal cases should receive unanimous support in Parliament as it is aimed at promoting the rule of law.

PETALING JAYA: A senior lawyer has called for the law to be amended so that the prosecution can only discontinue a criminal trial at the defence stage with leave of the court.

Salim Bashir said Parliament would need to amend Article 145(3) of the Federal Constitution and sections 254 and 376 of the Criminal Procedure Code (CPC) to vest the court with discretion when faced with such an application.

“At the moment, the hands of judges are tied and any refusal will be seen as an attempt to usurp the power of the Attorney-General (AG),” he told FMT.

Article 145(3) gives the AG, who is also the public prosecutor, complete discretion to institute, conduct and discontinue all criminal proceedings before the courts.

Meanwhile, Section 376 of the CPC states that the AG shall have control and direction of all criminal prosecutions.

Section 254 states that at any stage of the trial, but before delivery of a judgment, the prosecution may inform the court that it intends to discontinue the case.

Salim Bashir.

Salim, who is a former Malaysian Bar president, however, said that the prosecution should be given absolute discretion to withdraw or amend a charge up to the close of the prosecution case.

He said such amendments should receive unanimous support in Parliament as it is aimed at promoting the rule of law and good governance.

Salim was commenting after the prosecution secured a discharge not amounting to an acquittal for deputy prime minister Ahmad Zahid Hamidi in respect of his Yayasan Akalbudi corruption case.

On Sept 4, deputy public prosecutor Dusuki Mokhtar applied for the DNAA to allow the Malaysian Anti-Corruption Commission to conduct further investigations into the case.

Dusuki also said that a Royal Commission of Inquiry (RCI) would be formed to look into various matters contained in former attorney-general Tommy Thomas’ controversial memoir published in 2021, particularly with regard to selective prosecution.

In January last year, Justice Collin Lawrence Sequerah ordered Zahid to enter his defence to the case after ruling that the prosecution had established a prima facie case.

Zahid and 14 defence witnesses had already testified in a bid to establish reasonable doubt in the prosecution case.

Zahid was facing 47 charges, 12 of which were for criminal breach of trust, eight for corruption and the remainder for money laundering.

He was accused of embezzling millions of ringgit from his foundation and for accepting bribes for various projects during his tenure as home minister between 2013 and 2018, under the administration led by Najib Razak.

Meanwhile, lawyer A Srimurugan said allowing the prosecution to withdraw a case after the defence has been called would undermine the findings of the court.

A Srimurugan.

“It would be a waste of judicial time and taxpayers’ money,” he added.

Srimurugan said that if there are no cogent reasons to withdraw, the court should be at liberty to continue hearing the defence case.

He said the Federal Court had in a 2021 pronouncement cautioned that the AG ought to exercise his prosecutorial discretion properly when charging any person with a criminal offence.

Holding that N Sundra Rajoo enjoyed immunity from prosecution for acts done in his capacity as director of the Asian International Arbitration Centre (AIAC), Chief Justice Tengku Maimun Tuan Mat warned that the improper exercise of discretion could have severe consequences on the life and livelihood of the individual concerned and society at large.

The Federal Court in that case ruled that the AG does not have absolute or unfettered discretion under Article 145(3), and the exercise of the discretion was in rare and exceptional cases amenable to judicial review.

Srimurugan said any amendment to the constitution and the CPC will allow the courts to act as a check and balance on the AG’s power in criminal cases.

“There was public uproar in Zahid’s case as the AG was legally right but morally wrong in the exercise of his discretion,” he said. - FMT

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