Vips Dnaa Not About Issue Of Numbers

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In her recent parliamentary reply, Minister in the Prime Minister’s Department (Law and Institutional Reform) Azalina Othman Said contended that the Attorney-General’s Chambers (AGC) merely granted 18 VIPs a discharge not amounting to an acquittal (DNAA) between 2017 and 2024.
Nonetheless, she did not reveal the names of these VIPs. However, we all know among the high-profile VIPs who were granted DNNAs include the current deputy prime minister, former prime minister Najib Abdul Razak, and former treasury secretary-general Irwan Serigar Abdullah.
Najib and Irwan were granted a DNAA over six criminal breach of trust charges involving RM6.6 billion. Hitherto both have not been reindicted despite the fact under the law the DNAA is merely a provisional release.
As expected, the minister cited Article 145(3) of the Federal Constitution as the basis for the AGC to resort to such mind-boggling decisions - asking the court to grant DNAA to certain VIPs.
Yes, the said constitutional provision allows the attorney-general to use (or misuse?) his discretion to institute, conduct, or discontinue any proceedings for an offence, other than proceedings before a Syariah Court, a native court, or a court martial.
Former prime minister Najib Abdul Razak and former treasury secretary-general Irwan Serigar AbdullahBefore delving into a deeper analysis of her aforesaid statement it's important to put the discussion on this issue into perspective.
To begin with, no one, let alone members of the legal fraternity, questions the discretionary power vested to the attorney general cum the public prosecutor under Article 145 of the apex law. Such a power is duly embedded in the highest law of the land for noble and sacrosanct reasons.
One of them is to ensure the chief prosecutor of the nation can carry out his job without fear or favour. Cowardice is not the name of the game.
Some even believe that the discretionary power enshrined in Article 145 of the Federal Constitution is almost absolute in nature. However, as rightly pointed out by former Agong Raja Azlan Shah in the case of Pengarah Tanah dan Tanah Galian v Sri Lempah Enterprise Sdn Bhd, absolute discretion is a contradiction in terms. Every discretion must have its limits otherwise there will be a dictatorship.
Check and balance
Victorian period historian Lord Acton used to say, “Power tends to corrupt and an absolute power corrupts absolutely.”
Be that as it may, the recent judicial trends involving this issue seem to hold that the power of the AG is not unlimited. It is subject to check and balance.
Therefore, it may be questioned by courts in certain circumstances. In other words, unless such a vast power is judiciously exercised, the AG’s power would still be subject to judicial scrutiny.
Having said the above, we may safely argue that the issue of DNAAs being granted to VIPs is not about the issue of numbers. On the contrary, it is about the manner in which such DNAAs were granted in the first place.
For instance, in a case where the prosecution managed to successfully establish a prima facie case against an accused person who faced 47 criminal charges including charges entailing corruption and abuse of power, it would have been preposterous for the AG to ask the court to grant the DNAA.
It just did not make any sense. Worse, the alleged offender was already called for defence and he had given his testimony in court.
When the court held that the prosecution managed to prove prima facie against an accused person who faced 47 criminal charges it implied that the prosecution had a solid case against such an accused person.
After all, the court had to apply maximum evaluation of all the evidence tendered by the prosecution before it decided to call that person to enter his defence.
Sorry minister, we are not convinced at all in your reply. - Mkini
MOHAMED HANIPA MAIDIN is a former deputy minister of law.
The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.

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