KUALA LUMPUR (April 18): The Malaysian Bar argued in court that its challenge against Deputy Prime Minister Datuk Seri Dr Ahmad Zahid Hamidi's conditional discharge is not academic as it may determine the fate of the Yayasan Akalbudi graft case.

During the leave hearing on Thursday before High Court judge Datuk Amarjeet Singh Serjit Singh, Datuk Ambiga Sreenevasan, the counsel for the Bar, stressed that the organisation's legal action against the DPM and the Attorney General's Chambers (AGC) is consequential.

If the decision to grant Zahid a discharge not amounting to acquittal is quashed, the AGC is "compelled to go back and continue the trial," she said. "There is still something that can rectify the situation."

"So much work was done...to just come and give the reasons that have been given – the hard work would go to waste just because someone is screaming political prosecution. This is about the administration of justice," she said.

Ambiga added that the Bar's action was to ensure that institutions are held accountable.

In a decision that drew brickbats from many quarters, the prosecution in the DPM's criminal breach of trust, corruption, and money-laundering case informed the court of their intention to discontinue and drop all 47 charges against Zahid even though his defence had been called.

Presiding judge Datuk Collin Lawrence Sequerah had handed down a discharge not amounting to acquittal, or DNAA, to the Umno president, as opposed to the defence’s request for a full acquittal.This means that Zahid can still be charged for the same charges in future.

The Bar is challenging the AGC's decision to discontinue the trial via a judicial review. Among others, they are seeking an order to quash the AGC's decision to seek a DNAA.

The Bar is also seeking an order instructing the AG to act in accordance with the law, including prosecuting Zahid again if deemed appropriate, as per Section 254A of the Criminal Procedure Code.

It is also seeking an order compelling the AG to provide information and documentation justifying the decision to apply for a DNAA for Zahid.

'No compelling evidence that AG's action tainted with illegality'

During Thursday's lengthy hearing, senior federal counsel Shamsul Bolhassan, representing the AGC, countered that the Bar had failed to prove that the AG's decision was indeed tainted with illegality, nor did they back up their contentions with compelling evidence.

Senior federal counsel Shamsul Bolhassan. (Photo by Shahrin Yahya/The Edge)

He argued that the AG was acting well within his prosecutorial discretion under Article 145(3), which states that he can institute, conduct or discontinue any proceedings for an offence.

Meanwhile, Zahid's counsel Datuk Hisyam Teh Poh Teik argued that the rule of law must be observed, and that there are clear demarcations between the civil and criminal courts.

Zahid's DNAA was delivered by the criminal courts, and the Bar's application is being heard in the civil courts (appellate and special powers). By and large, one High Court cannot issue a judicial review against another High Court's decision.

The Bar has also made an application to refer its constitutional questions to the apex court. They have posed three questions on whether the landmark decision of Asian International Arbitration Centre director Datuk N Sundra Rajoo included the AG's discretion to discontinue prosecution as well.

Zahid's counsel Datuk Hisyam Teh Poh Teik. (Photo by Shahrin Yahya/The Edge)

In the landmark case, the apex court ruled that Sundra had the privilege of immunity from criminal proceedings, and that the AG did not have absolute and unfettered discretion to institute a case.

The court has set June 27 to deliver its decision on the leave application and the Bar's application to refer its questions of law to the Federal Court.