Yayasan Akalbudi: Apex court grants Zahid, AG leave to appeal Bar's judicial review bid

The Federal Court has granted leave to Deputy Prime Minister Ahmad Zahid Hamidi and the attorney-general (AG) to appeal against the Court of Appeal’s decision in the Malaysian Bar’s judicial review case.

The Court of Appeal had, on May 7, granted the bar leave to challenge the AG’s decision to temporarily discontinue the prosecution of Zahid in 2023.

This was over Zahid’s 47 corruption charges involving Yayasan Akalbudi funds, where he had obtained a discharge not amounting to an acquittal (DNAA).

Chief Judge of Malaya Hashim Hamzah, in reading the panel’s unanimous decision, noted the difference in threshold tests applied by the High Court and Court of Appeal in deciding on the Bar’s leave application previously.

He detailed that the High Court has applied a one-step test while the Court of Appeal used a two-step test laid down in a 2021 precedent case of Sundra Rajoo Nadarajah.

“(These tests) must be applied in greater discipline, caution and restraint when involving the AG’s prosecutorial power under Article 145(3) of the Federal Constitution.

“We are of the view that the present case raised novel constitutional issues or public importance that need clarification and final determination of this court.

“In these circumstances, we allowed both leave applications,” he said.

Presiding with Hashim were judges Nordin Hassan and Che Ruzima Ghazali.

The AG, through this appeal, is seeking determination on legal questions concerning the scope of prosecutorial discretion under Article 145(3) of the Federal Constitution, particularly on whether the prosecutor’s decision to institute, discontinue, or withdraw a prosecution is amenable to judicial review.

If answered in the positive, both Zahid and the AG sought the court’s determination on the applicable threshold for leave in a judicial review challenge against the AG’s prosecutorial power under the same Article.

Senior federal counsel Ahmad Hanir Hambaly @ Arwi appeared for the AG; senior lawyer Hisyam Teh Pok Teik appeared for Zahid, while the bar was represented by lawyers Ambiga Sreenevasan and Steven Thiru in today’s proceedings.

Zahid’s DNAA

On Sept 4, 2023, the Kuala Lumpur High Court granted the prosecution’s application for DNAA on Zahid’s corruption case.

The lead prosecutor, Dusuki Mokhtar (above), who is the current AG, had laid out 11 reasons for the application, including to allow the prosecution a more comprehensive and complete investigation into Zahid’s case.

The DNAA was granted while the case was at the defence stage.

Following this, the Bar filed their judicial review application on Dec 4, the same year, challenging the AG’s decision.

The Bar failed to obtain permission from the Kuala Lumpur High Court in 2024 to pursue their challenge. The Court of Appeal overturned the decision this year.

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