Tengku Maimun noted that there were cases last year where the public prosecutor discontinued charges against “prominent individuals”.
“When the public prosecutor decides to withdraw charges, the courts only have one of two very limited consequential options,” she said referring to either granting a discharge not amounting to acquittal (DNAA) or a full acquittal.
“The courts cannot turn around and insist to the public prosecutor that a charge should remain.”
However, Tengku Maimun, who was speaking at the opening of the Legal Year here, did not refer to any specific case.
The nation’s top judge said the judiciary and public prosecutor had their own constitutionally demarcated functions, and that both must be adjudged fairly in the exercise of their powers.
In September last year, deputy prime minister Ahmad Zahid Hamidi was granted a DNAA on all 47 of his corruption, criminal breach of trust (CBT) and money laundering charges in his Yayasan Akalbudi case.
This prompted calls for an explanation over the prosecution’s request to conditionally discharge Zahid.
The Umno president had been accused of embezzling millions of ringgit from Yayasan Akalbudi and accepting bribes for various projects during his tenure as the home minister between 2013 and 2018.
Tengku Maimum also said there were comments by certain irresponsible parties who wanted to paint a picture that the judiciary had an “agenda” to eradicate Islam in this country or to remove the Islamic legal system in Malaysia.
“Some of these comments unjustifiably question the personal faith of certain judges or even their motivation for deciding as such.”
She said such comments incite hatred and ill will among the public against the judiciary.
“In certain other respects, large crowds are mobilised and their presence is used to intimidate the judges,” she said, referring to two constitutional challenges against a Selangor shariah enactment in the past.
In both constitutional challenges against the state government, a man and women’s rights group, Sisters In Islam, had filed applications to question whether the Selangor state assembly was empowered to pass certain legislation.
Both their constitutional challenges were granted by the Federal Court.
Precedent-setting decisions
Separately, Tengku Maimun said the Federal Court, being the apex court, cannot depart too easily from precedent-setting decisions.
The Federal Court cannot afford to be inconsistent as the public expects legal clarity and certainty, the top judge said.
Tengku Maimun also reminded the lower courts to abide by precedents set by higher courts, saying the individual opinion of a judge is irrelevant on account of “stare decisis”.
“Even if a judge or court believes a decision of the higher court is wrong, they are still under the obligation to abide by it.
“It would be for the parties to bring that case to the higher court to argue in favour of departing from the previously established precedent if the circumstances warrant it,” she added.
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