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Malaysia 101: Key Factors On Zahid Hamidi’s DNAA Decision

Zahid Hamidi Parliament DNAA Legal

One fact that cannot be dismissed from the way the opposition political parties have been behaving after the decision by the Attorney General on Zahid Hamidi’s corruption case is that they are not ready or capable to be effective mechanisms to do a proper check & balance on the current Unity Government. Screenshot: Youtube/Astro

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Legal Terminologies

Prima Facie

Many harped on why the Attorney General decided to apply for a release without acquittal on Zahid Hamidi when the judge had determined that there was a prima facie case to proceed further. So, what does it mean by prima facie?

In most legal proceedings, one party (typically, the plaintiff or the prosecutor) has a burden of proof, which requires them to present prima facie evidence for each element of the charges against the defendant.

If they can’t present prima facie evidence, or if an opposing party introduces contradictory evidence, the initial claim may be dismissed without any need for a response by other parties.

(Source: Investopedia)

Another clarification is this:-

When Zahid is ordered to enter his defence, it means the prosecution has made out a prima facie case against him. The law is contained in section 180 of the Criminal Procedure Code (CPC), which provides for the procedure after conclusion of the case for the prosecution as follows:

(1) When the case for the prosecution is concluded, the Court shall consider whether the prosecution has made out a prima facie case against the accused.

(2) If the Court finds that the prosecution has not made out a prima facie case against the accused, the Court shall record an order of acquittal.

(3) If the Court finds that a prima facie case has been made out against the accused on the offence charged the Court shall call upon the accused to enter on his defence.

(4) For the purpose of this section, a prima facie case is made out against the accused where the prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction.

(Source: Malay Mail)

Be mindful that this is not the first case with DNAA status after the judge found a prima facie case before the prosecutor applied for a discharge not amounting to acquittal.

Powers of Attorney General

Hearing the opposition crying foul of the Attorney General’s decision on Zahid Hamidi’s case and blaming it on the Unity Government, it is clear that many including members of Parliament are still clueless about the actual powers of the Attorney General in relation to Zahid Hamidi’s case.

Article 145(2) of the Federal Constitution stipulates: “It shall be the duty of the attorney-general to advise the Yang di-Pertuan Agong or the cabinet or any minister upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Yang di-Pertuan Agong or the cabinet, and to discharge the functions conferred on him by or under this Constitution or any other written law”.

Article 145(3) provides that the “attorney-general shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a syariah court, a native court or a court-martial”.

(Source: NST)

The Attorney General derives his powers from the Constitution and answers to no one regarding litigation decisions. Many have incorrectly pointed out the fact that the Attorney General Chambers is under the Prime Minister’s office. This is more for logistics & administrative purposes instead of assignments & segregation of powers.

Zahid Hamidi’s Case

Let’s recap what happened in Zahid Hamidi’s case got the opposition riled up and saw the sole Member of Parliament from the MUDA political party announce that his political party have decided to withdraw their support for the Unity Government.

The application to discharge but not acquit Deputy Prime Minister Datuk Seri Dr Ahmad Zahid Hamidi was made based on arguments that were accepted by the court, says the Attorney General’s Chambers.

The AGC, in a two-paragraph statement, said that the High Court Judge stated that the arguments presented by the prosecution were cogent.

The AGC issued the statement in response to criticism of its move not to proceed with the case against Ahmad Zahid.

On Monday, the High Court granted the Deputy Prime Minister a discharge not amounting to an acquittal (DNAA) over 47 graft charges.

The charges were brought against him by the Malaysian Anti-Corruption Commission in connection with alleged misuse of funds regarding his charitable foundation Yayasan Akalbudi (YAB).

The prosecution made the application as further investigation was needed into the case.

Deputy Public Prosecutor Datuk Mohd Dusuki Mokhtar listed 11 reasons, including to ensure that no miscarriage of justice is committed and to make way for more comprehensive investigations by authorities.

(Source: The Star)

To make the situation in relation to Zahid Hamidi’s case even more comical, they have ignored the many DNAA cases that took place when they were in power such as this:-

The Kangar Sessions Court today gave a discharge not amounting to an acquittal to Arau MP Shahidan Kassim, who was accused of molesting an underage girl in his car six months ago.

Lawyer Zamri Ibrahim, representing Shahidan, said that Sessions Court judge Ainul Shahrin Mohamad made the decision after being informed that the prosecution did not want to proceed with the case due to the victim not wanting to be questioned, even in camera.

(Source: Malaysiakini)

To be frank, the noise from the opposition on the outcome of Zahid Hamidi’s case is not a big surprise considering that they have focussed on political issues to destabilise the current government instead of focusing on the real work development of their constituents and ensuring proper checks & balances in the Parliament.

On MUDA’s decision to pull out their support from the Unity Government, one has to say that it is just a matter of time considering how they have stood in PH’s winnable seats in the recent state election.

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DPPP’s 11 Reasons for DNAA

The Deputy Public Prosecutor Datuk Mohd Dusuki Mokhtar actually listed 11 reasons for the application to release without any acquittal on Zahid Hamidi’s case.

One of the critical failure of the Unity Government in facing the criticisms from the court outcome of the Zahid Hamidi’s case is explaining why the Attorney General decided in that manner and why the Government should not & will not get involved in the affairs of the Attorney General

THERE were 11 reasons on Datuk Seri Dr Ahmad Zahid Hamidi’s discharge not amounting to acquittal (DNAA) in Yayasan Akal Budi case, according to Deputy Public Prosecutor Datuk Ahmad Dusuki Mokhtar.

1. The defence called 15 witnesses including Zahid himself. The prosecution believes that the testimonies of these witnesses need to be examined by both the prosecution and the investigators.

2. Zahid submitted two representation letters to the Attorney General’s Chambers (AGC) dated Dec 8, 2022, and Jan 25, 2023, respectively.

3. Following the letters, the Malaysian Anti-Corruption Commission (MACC) informed the AGC on Jan 20, 2023, that it is crucial to conduct a further detailed, comprehensive, and in-depth investigation.

4. Zahid once again, on Feb 28, 2023, and March 7, 2023, sent four more representation letters to raise new issues and evidence, which undoubtedly required MACC to investigate.

5. The letters also addressed the issue of the investigation into the accused before, during, and after being charged in court, which was alleged to have been rushed, careless, premature, and incomplete.

6. This matter undoubtedly has the potential to tarnish the reputation and credibility of AGC as the prosecuting party and the MACC as the investigating body. It may appear that these institutions have been manipulated or exploited by certain parties for their own agenda.

7. To ensure that Zahid’s rights are not denied and to prevent any miscarriage of justice. We believe that all charges against Zahid should be temporarily halted at this time, but only with the effect of a DNAA until a more thorough and comprehensive investigation is completed.

8. The prosecution believes that this court should take note on the Cabinet’s announcement to establish a Royal Commission of Inquiry (RCI) to investigate the former Attorney-General Tan Sri Tommy Thomas’s memoir and the revelations he made regarding charges made against certain individuals.

9. Zahid raised a serious issue in his representation letters such as claiming that he is a victim of selective prosecution by the previous government. The AGC believe that it is crucial for the prosecution and the MACC to thoroughly examine and investigate this claim.

10. This is in line with the RCI’s objectives, which, among other things, aims to investigate allegations related to professional misconduct by the highest officeholders in the country.

11. An internal memo purportedly issued by the AGC regarding the ongoing case has circulated on social media. The AGC is taking steps to verify the content of this internal memo and believes it is important as it directly addresses the issues raised by Zahid in his letters.

(Source: NST)

One of the key maxims of our legal justice system is to ensure the innocent are not wrongly sentenced which is why all accused are presumed to be innocent until proven guilty beyond a reasonable doubt. Whilst no doubt there will be political implications from the decision on DNAA, the prosecutors have made it clear that there are new evidence & issues that need to be considered and investigated, especially if there are indeed elements of recklessness.

Muhyiddin Legal Case

Another high-profile case that saw the discharge & acquittal of an important political is the case of Muhyiddin Yassin. Obviously, there was little noise coming out from the opposition then.

KUALA LUMPUR: The High Court here has discharged and acquitted Tan Sri Muhyiddin Yassin of four charges involving abuse of power to obtain a RM232.5mil gratification for Parti Pribumi Bersatu Malaysia (Bersatu).

Justice Muhammad Jamil Hussin made the order to discharge and acquit the former prime minister and Bersatu president here on Tuesday (Aug 15) after the court was satisfied that all four charges were defective, baseless and vague.

He said the charges did not show any details on the offence, causing the accused unable to give proper instructions to his team of lawyers.

While the four charges contained details required under Section 153 of the Criminal Procedure Code (CPC) – which were the time, place and the person who gave the gratification – the court found that the charges did not contain details of how the offence was committed, as required under Section 154 of the CPC.

“The charges did not give enough notice for the applicant on the offences he is accused of.

“The applicant is prejudiced when he does not know the actual nature of the offence, making him unable to prepare a defence before the start of the trial,” the judge said.

Justice Muhammad Jamil gave the example of the audit tampering case involving former prime minister Datuk Seri Najib Razak and former 1Malaysia Development Bhd (1MDB) CEO Arul Kanda Kandasamy, whose offences were framed under the same Section 23(1) of the Malaysian Anti-Corruption Commission (MACC) Act, and contained details of how the offences were committed.

The judge questioned why the offences faced by Muhyiddin under the same Section 23(1) of the MACC Act, did not contain details like those in the Najib and Arul Kanda case, such as making a decision or taking action in relation to the offence.

“I disagree with the Deputy Public Prosecutor that the way or how the applicant allegedly abused his position need not be stated in the charge sheets but could be proven through testimonies during the trial.

“The prosecution did not refer this court to any law authorities to support that argument,” Justice Muhammad Jamil said.

Justice Muhammad Jamil said the applicant should not be forced to go through criminal proceedings that ignored the legal requirement under Section 154 of the CPC.

The court then allowed Muhyiddin’s application to strike out the charges.

The charges are framed under Section 23(1) of the Malaysian Anti-Corruption Commission (MACC) Act 2009 and carry imprisonment of up to 20 years, and a fine of no less than five times the amount of gratification or RM10,000, whichever is higher, upon conviction.

(Source: The Star)

If you look at the judge’s decision, it seems that the acquittal is based on procedures rather than on real cases. Don’t be surprised if the new Attorney General relook into the case & new charges based on new evidence & facts.

Rosmah Legal Case

With the 2 recent high-profile litigations involving high-ranking politicians which both saw some form of acquittal, naturally, the question is what will happen to the upcoming legal against Rosmah who is facing a tax evasion case.

Weeks after the High Court ordered for her money laundering and tax evasion trial to commence, Datin Seri Rosmah Mansor has now filed an application to strike out all of the charges on which she is currently on trial.

In court documents sighted by Malay Mail, Rosmah said the 17 charges against her were baseless, defective and premature since she argued the criminal court was not a suitable forum to determine whether some RM7.1 million — the amount stipulated in her charges — she received were taxable under the Income Tax Act.

“If the criminal court proceeds with its findings, it will usurp the functions of the Special Commissioners of Income Tax (SCIT) which is an authorised body under a written law.

“Under any circumstances, I reserve the substantive right to refer the said chargeable amount to the SCIT which has been denied to me in these charges,” she said in her affidavit ahead of a case management on the trial fixed for hearing at the High Court today.

Rosmah also said she possessed the substantive and constitutional right to be treated fairly, including substantive legal right under the Income Tax Act to present her appeal on any assessment sought by the Inland Revenue Board which she said claimed to have been denied in the present case.

(Source: Malay Mail)

Looking at the arguments put forward by Rosmah’s legal team and in the name of justice, it is obvious that we may likely see another discharge not amounting to acquittal for the prosecution to review the charges brought up against Rosmah namely because it did not pass the due process of the case going through the Special Commissioners of Income Tax.

Some Hard Facts

There are several facts that one needs to derive from the recent cases in particular Zahid Hamidi’s case that are reflected unfairly back to the PMX & the Unity Government because there are too many incorrect narrations in the social media being heavily promoted by the opposition politicians. The reason for this is that as usual, the communication team in the Unity Government is not aggressive enough to counter the misinformation & putting forward the correct facts.

Fact No. 1

There is no real evidence or statement implicating the PMX in the Attorney General’s request to discharge not amounting to acquittal in Zahid Hamidi’s case despite a prima facie case. There are only allegations (albeit a serious one) and political incorrectness spreading the same misinformation in social media without any prior checking.

If there is indeed interference by the PMX in Zahid’s case, it will be a political suicide for PMX and one doubts that Anwar is going to sacrifice all that he had built on to be wasted by interfering in Zahid Hamidi’s case.

Fact No. 2

The decision to request to discharge not amounting to acquittal in Zahid Hamidi’s case is solely the discretion of the Attorney General and this is entrenched in the Constitution. A professional Attorney General may advise or get advice from the Government on litigation cases but not direct instructions from them on how to conduct the legal cases.

Fact No. 3

All charged in the court are presumed to be innocent until proven guilty unless of course there is overwhelming evidence of corruption & attempts to interfere with legal proceedings like it happened in Najib’s IMDB case. This doctrine of presumption of innocence is well entrenched in English Law & thus in Malaysian Law as well and puts the burden of proving the guilt on the prosecution and thus puts more consideration on them.

Fact No. 4

As much as PN & those who have been misinformed about Zahid Hamidi’s case want to put the blame on the PMX and the Unity Government for Zahid’s DNAA, the fact is that PMX and Pakatan Harapan are not the current Government. They are just part of a Government where BN & GPS make the other parts. The moment BN or GPS decides to break away & pull their support to the Unity Government, the current Government falls.

The weakling of the two is BN where their politicians are facing legal charges. That is why PN is campaigning 24×7, insisting that PMX act on Zahid which will likely make BN pull out from Unity Govt.

Final Say

The recent explanation by the PMX in Parliament on Zahid’s DNAA emphasises that it is the Attorney General’s decision and not influenced by anyone in the Government. The explanation is crystal clear but instead of asking for further clarifications, the opposition decided to make a ruckus and exited the Dewan Rakyat just to make a press conference raising the same allegation without any facts or evidence.

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