The Court of Appeal has now made it clear: no law was broken in granting Ahmad Zahid Hamidi a discharge not amounting to acquittal (DNAA).
Legally, the matter stands settled.
Publicly, it does not.
This is not a column about defying the courts, nor is it an attempt to undermine the rule of law. On the contrary, it is precisely because the law matters that this moment demands deeper reflection. Because when something is legally sound but publicly unconvincing, the problem is no longer legal it is institutional.
For weeks, the public discourse has been noisy, emotional, and often reckless. Accusations flew freely claims that the Prime Minister interfered, that the Attorney General’s Chambers (AGC) acted on political instructions, that the entire process was orchestrated. It is, therefore, both necessary and welcome that legal minds those who actually understand the machinery of law have stepped in to clarify what the law permits.
And they are correct on one point: the DNAA decision, in itself, did not violate the law.
Under Article 145(3) of the Federal Constitution, the Attorney General possesses broad prosecutorial discretion. Section 254 of the Criminal Procedure Code further allows for a discharge not amounting to an acquittal. In that narrow, technical sense, the decision sits comfortably within the boundaries of legality.
But legality alone has never been the sole measure of justice.
The deeper discomfort arises from the context in which this discretion was exercised. This was not a case at its infancy. The prosecution had already called more than ninety-nine witnesses. The defence had begun its case and was into its fifteenth witness. The trial was not merely underway it was approaching its natural conclusion.
At that stage, the expectation of the public is simple and instinctive: let the court decide.
Even the presiding judge, by several accounts, was not pleased with the late-stage withdrawal of the charges. That reaction matters. Judges are not mere spectators in the administration of justice; they are its custodians. When a case of such magnitude is halted just as it nears judgment, it inevitably raises questions not necessarily of legality, but of propriety.
This is where the distinction between power and principle becomes critical.
The Attorney General may have the power to halt a prosecution. The law allows it. Precedents support it. Article 145(3) provides the foundation for it. But the existence of power does not automatically justify its exercise in every circumstance.
This is not a new debate. In Malaysian administrative law, courts have long recognised that discretionary power is not beyond reason. The principle often applied known as Wednesbury unreasonableness has been adopted locally through cases where decisions can be challenged if they fall outside what any reasonable authority would do. Put simply, even where the law gives power, its use must still make sense. In a local context, the question becomes direct: when a prosecution that has already heard nearly a hundred witnesses is halted just before judgment, does that decision fall within a range that a reasonable authority would consider justified?
The Malaysian courts themselves have recognised that discretionary power is not beyond scrutiny. In cases such as Rama Chandran v Industrial Court of Malaysia and more recently Peguam Negara v Chin Chee Kow (2019), the courts affirmed that even wide powers must still pass the test of legality, rationality, and reasonableness. Discretion, in other words, is not a blank cheque it is a responsibility bounded by logic.
The question, therefore, is not whether the Attorney General has discretion. The question is whether the exercise of that discretion, in this particular case, falls within the bounds of reason.
Consider the facts. Ninety-nine prosecution witnesses had testified.
For the ordinary Malaysian, the situation is not complicated. It is like sitting through almost an entire football match ninety minutes nearly done only for the referee to suddenly stop the game before the final whistle and say the result will not be decided after all. The defence was already presenting its case. The trial was within sight of a verdict. Could any reasonable authority conclude that halting proceedings at that stage ostensibly to consider additional evidence served the public interest better than allowing the court to deliver judgment?
This is not an accusation of bad faith. It does not need to be. The test is far simpler, and far more uncomfortable: does the decision fall within the range of rational choices available to a reasonable decision-maker?
Public sentiment suggests that many believe it does not.
And this is where the real damage lies.
Public interest, at its core, is not an abstract legal concept. It is the assurance that the law applies equally to all, regardless of status, power, or position. When outcomes appear to favour those at the apex of political power, even if legally justified, the perception of equality begins to fracture.
This is why many Malaysians now express a troubling view: that the DNAA may be legal, but it feels like an abuse of the law.
That distinction matters.
The law provides the framework. Discretion operates within that framework. But when discretion is exercised in a manner that appears to undermine the spirit of justice, it risks eroding confidence in the very system it is meant to uphold.
History offers a cautionary parallel. In 1987, the case involving Eusoffe Abdoolcader addressed the limits of prosecutorial power under Article 121(1) of the Constitution. At that time, judicial power was explicitly vested in the courts, and attempts to bypass that authority were deemed unconstitutional. The subsequent amendment of Article 121 altered that balance, expanding the operational space for prosecutorial discretion.
Today, that expanded discretion sits at the heart of the current controversy.
Article 145(3) remains a powerful shield. It grants the Attorney General wide latitude in deciding whether to prosecute, discontinue, or pursue a case. As far as precedent goes, the law has consistently favoured the Attorney General’s position.
But the question that lingers is whether such discretion should remain so unfettered.
Comparative jurisprudence offers an interesting contrast. The Supreme Court of India has consistently emphasised that a Public Prosecutor is not merely an agent of the executive but an officer of the court a minister of justice. While endowed with discretion, that discretion is treated as a public trust, subject to judicial oversight and grounded in the interest of justice.
In India, decisions to withdraw from prosecution require the consent of the court, which must be satisfied that the decision is not based on extraneous considerations.
Extraneous considerations.
The phrase lingers uncomfortably in the Malaysian context.
Here, the legal position remains clear: the Attorney General’s discretion is broad, and the courts have historically been reluctant to interfere. For now, Article 145(3) stands as both shield and justification.
But legal clarity does not necessarily resolve moral unease.
The irony of the current moment is stark. We are told, correctly, that no law has been broken. Yet many feel that something fundamental has been bent.
This is the paradox of modern governance: a decision can be entirely lawful and yet deeply unconvincing.
The implications extend beyond a single case.
When public confidence in prosecutorial decisions weakens, it inevitably affects the credibility of broader reform efforts. Calls to separate the roles of the Attorney General and the Public Prosecutor may gain momentum, but structural reform alone cannot address a deeper issue the perception that discretion can be exercised without sufficient accountability.
So long as such perceptions persist, reform risks becoming procedural rather than substantive.
At its simplest, the public expectation is not complicated.
Let the court decide.
If Ahmad Zahid Hamidi is innocent, then the court, after hearing all the evidence, would have acquitted him. If he is guilty, the court would have convicted him. That is how justice is meant to function.
By halting the process midway, the system has denied itself the clarity that only a judicial verdict can provide.
And in that absence of closure, doubt inevitably fills the void.
There is, ultimately, a deeper question that cannot be ignored.
If the law permits such an outcome, should the law itself be reconsidered?
Because a system that relies solely on legal correctness, without securing public confidence, risks becoming hollow. Institutions do not collapse overnight. They erode gradually, through moments like this moments where legality is affirmed, but legitimacy is questioned.
The Court of Appeal has spoken. The law, we are told, has been followed.
But a justice system is not sustained by legality alone. It is sustained by belief.
And today, that belief looks far less certain than the law itself.
Annan Vaithegi writing on power, governance and society
Annan Vaithegi (annanvaithegi@icloud.com) is a content creator under the Newswav Creator programme, where you get to express yourself, be a citizen journalist, and at the same time monetize your content & reach millions of users on Newswav. Log in to creator.newswav.com and become a Newswav Creator now!
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