WE all know that the Kuala Lumpur High Court had granted Datuk Seri Ahmad Zahid Hamidi a discharge not amounting to acquittal (DNAA) of 12 charges for criminal breach of trust under Section 409 of the Penal Code; eight charges under Section 16(a)(B) of the MACC Act 2009; and 27 charges under Section 4(1)(a) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001.
Like it or not, many people – including the government supporters – are not really happy with such a verdict.
Worse still, some even speculated that such a verdict was to be expected when the present unity government had only been made possible with the strong support from Umno, which has been helmed by Zahid.
When the former senior deputy public prosecutor Datuk Raja Rozela Raja Toran, who was the lead prosecutor in Zahid’s corruption trial, opted for an early retirement many people in a legal fraternity smelt a rat.
It was then rumoured in the legal circle that her early retirement probably had something to do with the case.
Some ministers in the government have been trying their best to convince the public that the court’s verdict was purely the judicial decision. Hence, the government had nothing to do with such a mind-boggling decision.
To a certain extent it was true that it was the court’s decision in granting Zahid a verdict of the DNAA. After all, only the court is legally empowered to deliver such a verdict.
Nevertheless the government’s narrative, with the greatest respect, only represented a half truth.
Why? To know the real truth we have to understand the entire picture. In doing so, we need to know the decision making process of such a DNAA.
The ball-rolling of the DNAA process did not start by the court. On the other hand, it all began when the lawyers for Zahid wrote a letter of representation to the Attorney-General’s Chambers (AGC) asking the latter to review the indictments.
To be fair to Zahid, what his legal counsel did was nothing illegal. Those who are familiar with criminal litigation are fully aware of the representations in a criminal trial.
Was the AG bound to accept such a representation by Zahid’s lawyers? The answer is a resounding no.
Any first-year law student would say that it was absolutely weird for the prosecution to even consider let alone accept Zahid’s representation when it already managed to prove a prima facie case.
So much so the court duly concurred with the prosecution and in turn held that Zahid needed to enter his defence to answer all the criminal charges preferred against him.
Many laymen may not be fully aware that the standard of proof in establishing a prima facie case is beyond reasonable doubt whereby the court is obligated to carry out a maximum valuation of all the evidence adduced by the prosecution.
It is indeed a very high threshold which the prosecution needs to pass so much so if any accused elects to remain silent when a prima facie case has been established against him or her, the court will have no choice but to convict.
Be that as it may, when the AGC received the representation by Zahid’s lawyer any lawyer would have expected for the attorney-general to simply say, “sorry guys, your representation is hereby rejected. We shall leave it for the court to finally decide your client’s faith after the defence closes its case!”
But it never happened that way. The representation was surprisingly accepted and the deputy public prosecutor in that case then informed the court that the prosecution had agreed to accept it and in turn asked the court to enter nolle prosequi and grant Zahid a verdict of DNAA.
Zahid’s lawyers, however, prayed for a full acquittal which was refused by the judge.
Hence, in Zahid’s case the court, stricto sensu merely reaffirmed the “decision” by the AGC. Ergo, it would be incorrect to say that it was purely the court’s decision. No, it is not entirely the court’s decision.
The AGC had a role in such a verdict. Period. – September 5, 2023
Mohamed Hanipa Maidin is a former deputy law minister and practising lawyer