The Attorney General's decision to apply for a DNAA is cloaked with a presumption of legality, necessitating compelling prima facie evidence to challenge it in judicial review.

Amarjeet Singh Serjit Singh J:

Introduction

[1] There were two applications before me. Both are filed by the applicant, the Malaysian Bar.

First Application: Enclosure 1

[2] Enclosure 1, in the main, sought leave to commence judicial review proceedings for the following orders:

(a) an order of certiorari to quash the decision of the Attorney General (1st respondent) on 4 September 2023 to apply for a discharge not amounting to an acquittal ("DNAA") in Criminal Case No: WA-45-7-02/2019 and Criminal Case No: WA-45-8-02/2019 ("the said criminal cases") against Ahmad Zahid Bin Hamidi (2nd respondent and hereinafter referred to as "the accused");

(b) a declaration that the decision to apply for DNAA is null and void and/or made in excess of the jurisdiction and/or powers granted to the Attorney General under art 145(3) of the Federal Constitution ("Article 145(3)") and s 254(1) of the Criminal Procedure Code (" CPC ");

(c) in the event the above orders are granted, an order of mandamus directing the Attorney General to recharge the accused for the same 47 offences and to reinstate the trial under s 254A of the CPC ;

(d) an order of mandamus directing the Attorney General to furnish the applicant with all information, documentation, reasons, basis, and particulars relied upon in arriving at the decision, including but not limited to the letters of representation submitted by the accused;

(e) an order of mandamus directing the Attorney General to provide the applicant (as and when required) all information, documentation, reasons, basis, and particulars pertaining to the status of the ongoing and/or further investigations by the Attorney General including informing of any decision to recharge or discontinue investigations against the accused; and

(f) an order that the applicant be given and/or granted access to all matters and/or documents filed in respect of the said criminal cases including any court recordings, orders, and judgments.

[3] The court in which the prosecution of the said criminal cases was conducted and subsequently discontinued and wherein the order of DNAA was made is the Criminal Division of this court. The learned Judge, who made the DNAA order was Justice Collin Sequerah.

Second Application: Enclosure 15

[4] Enclosure 15 was made under art 128(2) of the Federal Constitution read with s 84 of the Courts of Judicature Act 1964 ("CJA"). This application was made before the application for leave in encl 1 was heard and in the application, the following questions (hereinafter referred to as "the said questions") be stated as a special case and referred by this court to the Federal court for determination:

Question 1:

Whether the test in Sundra Rajoo Nadarajah v. Merited Luar Negeri, Malaysia & Ors; [2021] 5 MLJ 209; 2021 MarsdenLR 2152 that a challenge to the Attorney General's decision to prosecute under art 145(3) of the Federal Constitution requires the applicant to adduce "compelling and prima facie proof of its case at the leave stage, applies to a challenge to the Attorney General's decision to seek a DNAA under s 254 of the Criminal Procedure Code .

Question 2:

Whether in an application for judicial review of the Attorney General's decision to apply for a DNAA pursuant to s 254 of the CPC in light of art 145(3) of the Federal Constitution , an applicant who is not the accused person bears the burden of producing "compelling and prima facie proof at leave stage when the factors and circumstances justifying the decision are known exclusively to the Attorney General.

Question 3:

Whether a decision by the Attorney General to apply for a DNAA of an accused person for an indefinite and/or undefined period of time under s 254 of the CPC amounts to a violation of the accused person's fundamental rights under art 5(1) read with art 8(1) of the Federal Constitution .

[5] The Attorney General and on the court's invitation, the accused, as the putative respondent, were heard on encl 1. I did so, based on the princi