THE Malaysian Bar yesterday won its appeal to begin its court challenge against the Attorney General’s 2023 decision to apply for a discharge not amounting to an acquittal (DNAA) against Ahmad Zahid Hamidi’s 47 charges in the Yayasan Akalbudi corruption trial.

Faizah Jamaludin, who chaired a three-judge panel at the Court of Appeal, said the panel unanimously decided that the Malaysian Bar’s court challenge could proceed to be heard by the High Court.

“Leave is granted to the Appellant to commence judicial review against the Attorney General’s impugned decision. The matter is remitted to the High Court for substantive hearing of the judicial review,” she said, referring to the Malaysian Bar as the appellant.

The other two judges on the panel were Datuk Lim Hock Leng and Nadzarin Wok Nordin.

The Malaysian Bar had on December 2, 2023 filed its court challenge via a judicial review application, but the High Court on June 27, 2024 decided not to grant leave for the case to be heard.

Since this is a judicial review case, the Malaysian Bar had to get the court’s leave or court’s permission first in order for the case to be heard.

The Malaysian Bar on July 23, 2024 appealed against the High Court’s decision, and this is the appeal it won today.

The High Court will now hear the Malaysian Bar’s challenge against the AG’s decision to get a DNAA in Zahid’s case, unless the AG decides to file an appeal on today’s decision.

When reading out excerpts of the court’s judgment today, Faizah noted that the Malaysian Bar’s appeal today involves an issue of constitutional and public importance, specifically on the threshold or the minimum requirement in order to get leave to challenge the AG’s discretion in prosecutions under the Federal Constitution’s Article 145(3).

Under Article 145(3), the AG has the power and discretion to “discontinue” any criminal proceedings or to drop prosecutions.

Faizah stressed that the Court of Appeal’s decision today is not on the merits of the criminal charges, “does not determine the guilt of or innocence of” anyone, and is also not on the AG’s motives and conduct.

Instead, she said the only question is whether the Malaysian Bar has met the threshold for leave to start its court challenge against the AG’s September 2023 decision to ask for a DNAA in Zahid’s case.

She made it clear that a DNAA is “not a finding of innocence or guilt”, but a “procedural order” that the courts make in criminal proceedings.

Faizah listed five legal issues that the Court of Appeal had examined in coming to its decision today, including whether the Malaysian Bar had fulfilled the test to be able to start its court challenge.

She said the Federal Court’s 2021 decision in the Sundra Rajoo case had clarified that the AG’s prosecutorial discretion under Article 145(3) is wide but is not “absolute or unfettered”, and that it had ruled that the AG’s prosecutorial discretion could be subjected to judicial review in “appropriate, rare and exceptional” situations.

She noted the Federal Court had made it clear that all public powers have legal limits and that the AG’s constitutional status does not mean that the courts could not review his prosecutorial discretion, although a higher standard of scrutiny would apply.

The Court of Appeal today decided that the test to get leave for a judicial review against the AG’s prosecutorial discretion is the same test that applies to other judicial review cases.

This test is whether there is an arguable case that is not frivolous.

But when the judicial review is about how the AG exercised his prosecutorial discretion, the Court of Appeal said the test for getting leave must also be applied with “discipline, caution and restraint” with considerations of four factors.

These four factors are the AG’s constitutional status; the presumption that the AG’s exercise of his prosecutorial discretion was legal; the doctrine of separation of powers; and the principle that judicial review over prosecutorial discretion is limited to “appropriate, rare and exceptional” cases.

Faizah said the presumption of legality of the AG’s prosecutorial discretion cannot be an “absolute bar” or completely shut out leave for judicial review, if such a court challenge is supported by identifiable and serious matters.

Unlike the AG’s decision to charge an individual which can be challenged within the court process and trials, she noted that the decision to discontinue or drop a prosecution “may have a final practical effect” and remove it from the courts.

“In such a case, a judicial review may be the only practical means by which the legality or rationality of the AG’s decision-making process can be examined,” she said.