Justice Nurulhuda Nuraini Nor said the Bar’s appeal challenging the attorney-general’s (AG) decision to discontinue the case would be rendered academic if she were to make a ruling.
“We will wait for the outcome of the appeal in the Court of Appeal, which I understand will be heard on April 8,” she said.
Zahid, who is a deputy prime minister, was present at the proceedings.
Nurulhuda said she had taken note of submissions made by Zahid’s counsel, Hisyam Teh Poh Teik, on the wide powers accorded to the AG, as public prosecutor, under Article 145(3) of the Federal Constitution and Section 254 of the Criminal Procedure Code.
The judge said she was also mindful of a Federal Court ruling that the AG’s constitutional powers were not absolute and could be subject to judicial review in appropriate circumstances.
“The unfettered discretion of the AG is still a live issue,” Nurulhuda said, adding that she did not want to usurp the power of the Court of Appeal to opine on the subject since it was a public interest issue.
The judge fixed the hearing on April 24.
Nurulhuda earlier allowed Bar representative S Abhilaash to submit as an amicus curiae (friend of the court) despite Hisyam’s contention that the statutory body had no locus standi in the case.
“To allow the Bar to address (the court) will erode the role and power of the AG,” he said.
Zahid filed an application to convert his present discharge not amounting to an acquittal (DNAA) to an acquittal last month, after the AG announced to the media that the case had been classified as “NFA” (requiring no further action) due to insufficient evidence to proceed with the trial.
Hisyam said the court must acquit his client given the position taken by the AG.
“The charges against my client have been hanging over his head for the last three years. The Bar’s position is an irrelevant consideration,” he said.
However, Abhilaash said that lawyers representing the Bar were previously permitted to address the court in criminal proceedings.
He said it was the duty of the Bar under Section 42 of the Legal Profession Act 1976 to uphold the cause of justice without fear or favour and to protect public interest.
“We just want to inform this court about what is going to happen in the Court of Appeal,” he said.
Deputy public prosecutor Badius Zaman Ahmad said the prosecution was not objecting to Zahid’s application, and had filed an affidavit to state its stand.
On June 27, 2024, the High Court in Kuala Lumpur dismissed the Bar’s application for leave to commence judicial review proceedings to challenge the AG’s decision to discontinue the case against Zahid.
Justice Amarjeet Singh ruled that the AG had no duty to furnish the Bar with any documents from the Malaysian Anti-Corruption Commission’s (MACC) investigations into the case.
On Sept 4, 2023, the High Court granted Zahid a DNAA on 47 charges of corruption, money laundering and criminal breach of trust to allow further investigations by MACC.
Justice Collin Lawrence Sequerah allowed the application despite previously ruling that the prosecution had established a prima facie case against Zahid on all charges.