KUALA LUMPUR: The Malaysian Bar will know on June 27 whether the High Court will allow its judicial review application to challenge Datuk Seri Dr Ahmad Zahid Hamidi's discharge not amounting to acquittal (DNAA) in the Yayasan Akal Budi corruption case.
Judge Datuk Amarjeet Singh fixed the date after hearing lengthy submissions from both parties today.
Malaysian Bar in their application sought relief from the court for an order of certiorari to remove and quash the Attorney-General's (AG) decision on Sept 4, last year to apply for a discharging not amounting to an acquittal (DNAA) in Zahid's case.
The applicant also wanted a court declaration that the impugned decision was null and void and made in excess of the jurisdiction granted to the AG.
The Malaysian Bar named AG and the deputy prime minister as the respondents.
Lawyer Datuk Ambiga Sreenevasan who appeared for the Bar submitted that the challenge raised important matters in accordance with its statutory obligations tasked under Section 42(1) of the Legal Profession Act.
"The Malaysian Bar stands as the only entity that has instituted legal proceedings to challenge the first respondent's (AG) decision to apply for the DNAA for the second respondent (Zahid).
"It is respectfully submitted that the Malaysian Bar has a real and genuine interest in the promotion and preservation of the rule of law and the administration of justice.
"This judicial review application concerns the proper interpretation and exercise of the powers of the AG under Article 145(3) of the Federal Constitution and Sections 254 and 254A of the Criminal Procedure Code to apply for a DNAA of an accused person in a criminal case.
"Therefore, the case relates to the exercise of powers and discretion by a public functionary under the Federal Constitution and an Act of Parliament on a matter that affects the public
"This is not a matter of the Malaysian Bar being a 'busybody' or meddling in the mere private affairs of an individual.
"It involves corruption charges against someone who held public office and the charges were dropped when he returned to power," she said.
Ambiga said that the decision to apply for a DNAA for Zahid was tainted with illegality and/or irrationality and unreasonableness as being contrary to the decision of the High Court.
She also said the prosecution had established a prima facie case against Zahid and the latter was ordered to enter his defence in the case.
"The AG's decision to apply for a DNAA for Zahid should be quashed as being made in the absence of relevant considerations or material to justify the decision.
"This is particularly the case as the decision was made after the High Court's ruling on the establishment of a prima facie case against Zahid and the absence of any material to render untenable that ruling," she added.
Meanwhile, Senior Federal Counsel Shamsul Bolhassan argued that the Malaysian Bar failed to prove that the AG's decision was indeed tainted with illegality, nor did they back up their contentions with compelling evidence.
He said the AG was acting well within his prosecutorial discretion under Article 145(3) of the Federal Constitution which states that he can institute, conduct or discontinue any proceedings for an offence.
Zahid's counsel Datuk Hisyam Teh Poh Teik argued that the Bar's application was already academic in the decision of the Criminal High Court to allow the order for a DNAA.
"The applicant has no locus standi to file this application. In short, the applicant is a mere busy body and not 'adversely affected' by the decision to apply for a DNAA. The applicant has also clearly failed to prove among others its locus standi in filing the application. Therefore, the leave application should be dismissed by this court," he said.
The Bar Council, in an application filed on Dec 2, last year, had named the AG and Zahid as respondents in their application for the DNAA decision to be rescinded.
It had also applied for a declaration that the AG's decision was null and void, and had overstepped its authority under Article 145(3) of the Federal Constitution and Section 254(1) of the Criminal Procedure Code.
It had also applied for a declaration that the decision was "unreasonable and tainted with irrationality."
The Bar, as the sole applicant, had applied for a mandamus order from the court to instruct the AG to act in accordance with the law and if applicable, act under Section 254A of the Criminal Procedure Code to prosecute Zahid again.
It is also seeking an order for the AG to provide the Bar with information on the status of further investigations into Zahid's case, including any move to file new charges, proceed with the trial, or cancel investigations.