Justice Faizah Jamaludin said the statutory body which represents more than 25,000 lawyers had crossed the threshold required for the merits of its case to be heard in the High Court.
“The (Bar) has an arguable case which is not frivolous,” she said when delivering the unanimous ruling of a three-member panel allowing the Bar’s appeal.
Also on the panel hearing the appeal were Justices Lim Hock Leng and Nadzrin Wok Nordin.
Faizah said the AG’s decision to obtain a DNAA is amenable to judicial review in “appropriate, rare and exceptional” cases. However, she said the court must exercise its discretion “with restraint, discipline and caution”.
Acknowledging that the AG has the benefit of the presumption of legality as laid down in the Federal Court of N Sundra Rajoo v. Menteri Luar Negeri Malaysia & others (2021), Faizah said the presumption was rebuttable.
She said Justice Collin Lawrence Sequerah’s grant of the DNAA following the prosecution’s application in 2023 was only a procedural order made in the course of the criminal proceedings.
Faizah said the significance of the criminal court’s finding that the prosecution had made out a prima facie case against Zahid on all 47 charges could not be understated since the trial judge had conducted a maximum evaluation of the evidence before him.
“Viewed from that context, the (Bar’s) argument that the (AG’s) decision was irrational or unreasonable in the public law sense is plainly arguable and not frivolous,” she said.
Faizah said the case met the “rare and exceptional” condition due to the convergence of multiple factors, including the seriousness of the charges and the public interest element.
She also dismissed the contention that the application amounted to a collateral attack on a court order.
“The appellant is not attacking the criminal court’s order granting a DNAA,” she said, pointing out that the challenge was against the AG’s decision to discontinue the prosecution.
The AG may appeal today’s ruling to the Federal Court but must secure leave by framing legal questions that raise novel issues of public importance that have not yet been determined.
On Sept 4, 2023, Zahid was granted a DNAA from 47 charges of corruption, money laundering, and criminal breach of trust, pending further investigations by the Malaysian Anti-Corruption Commission (MACC).
By that time, the trial had already reached the defence stage, with Zahid and 14 other defence witnesses having testified.
In December 2023, the Bar sought leave from the High Court to challenge the AG’s decision to apply for a DNAA in Zahid’s favour.
On June 27, 2024, the Kuala Lumpur High Court dismissed the Bar’s application, giving rise to the present appeal.
In a statement on Jan 8, the AG’s Chambers said the prosecution found insufficient evidence to proceed with the charges following the MACC probe.
Lawyers Ambiga Sreenevasan, Steven Thiru, and S Sivaneindiren represented the Bar, and counsel Hisyam Teh Poh Teik appeared for Zahid, while senior federal counsel Ahmad Hanir Hambali acted for the AG.