'NFA' for Yayasan Akalbudi: Attorney general’s justification raises suspicion

The Center to Combat Corruption and Cronyism (C4 Center) and the Coalition for Clean and Fair Elections (Bersih) are appalled by an Attorney General’s Chambers’ statement released on 8 January purporting to justify its decision to classify Deputy PM Zahid Hamidi’s Yayasan Akalbudi case as requiring ‘no further action’.

This comes after the decision to discontinue the prosecution against Zahid for 47 charges of criminal breach of trust, bribery and money laundering in 2023, resulting in Zahid being granted a discharge not amounting to acquittal, despite having been ordered to enter his defence at that point.

The decision to discontinue the prosecution against Zahid was made after a prima facie case had been made out against him, meaning the prosecution had already proved through credible evidence each ingredient of the offences Zahid was charged with, which would warrant a conviction if unrebutted or unexplained. 

In other words, the prosecution had already proven their case against Zahid at this stage.

At the time, the explanation given by deputy public prosecutor Dusuki Mokhtar, now the attorney general, was that Zahid raised new matters in his letters of representation to the Attorney General’s Chambers which needed to be investigated.

Now it seems that, in the view of the chambers, these new matters have somehow negated the evidence that was adduced in court by the prosecutors themselves.

In the chambers’ media statement, it is stated that upon investigations into the totality of matters and new evidence, there is “insufficient evidence” to sustain the continuation of prosecution for the 47 charges.

How is this possible, given that the prosecution had already proven their case against Zahid in a court of law for the 47 charges?

At the time the discharge not amounting to acquittal was sought, it was the turn of the defence to rebut the prosecution’s case. No mention of this aspect can be found in the chambers’ statement, which clearly calls into question the veracity of these so-called ‘investigations’. 

Once again, this situation leads to public doubt about the integrity of the Malaysian criminal justice system and, in particular, the ability of prosecutors to carry out their mandate effectively.

Longstanding calls for the separation of the offices of the attorney general and public prosecutor have led to commitments by the “Madani” (trustworthy) administration to table the necessary constitutional amendments this year. This is vital to limit the risk of direct influence from the prime minister to the attorney general, whose tenure is dependent on the former.

However, an additional matter of concern is the exercise of prosecutorial discretion, or more specifically the overly broad nature of such discretion. Article 145(3) of the Federal Constitution states that the attorney general “shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence”.

This general lack of limitation creates situations like this, where unjustifiable decisions are made in deciding whether or not to prosecute someone.

We hold that this is not an acceptable state of affairs in any functioning democracy. Prosecutors must be subject to proportionate and necessary limits on their powers and discretion in order to ensure justice is upheld, such as through the introduction of prosecutorial guidelines like the UK’s code for crown prosecutors or the Australian prosecution policy of the Commonwealth.

Therefore, we urge:

– C4 Center/Bersih