CJ: Judges being wrongly maligned for prosecution’s decision to drop charges

PUTRAJAYA, Jan 15 — Chief Justice (CJ) Tun Tengku Maimun Tuan Mat today said the judiciary has been unfairly vilified for the decisions of the other parts of the country’s justice system.

In particular, the country’s first woman CJ said these included the Public Prosecutor’s (PP) recent decisions to withdraw criminal charges against certain high-profile individuals.

Tengku Maimun said judges were being blamed for issuing orders that were inevitable in such cases, leading to undeserved criticism of the judiciary that also eroded public faith in the institution, she said.

“And yet, when a charge is withdrawn, the judge making the only available consequential order is painted as corrupt, sometimes as incompetent, or sometimes both.

“What the public fails to understand is that the person responsible for that decision is the PP and not the courts,” she said in her speech at the Opening of the Legal Year 2024 here.

Tengku Maimun said the courts only have one of two very limited consequential options whenever the attorney general, who is the country’s PP, discontinues any proceedings for an offence using his prerogative under Article 145(3) of the Federal Constitution.

“Depending on the facts, these two options are either granting an order of discharge not amounting to an acquittal popularly called ‘DNAA’ or a discharge amounting to an acquittal which can be called a ‘DAA’.

“The courts cannot turn around and insist to the PP that a charge remain.

“Each of them, the judiciary and the PP have their own constitutionally-demarcated constitutional functions and both must be adjudged fairly for the exercise of their powers to the exclusion of the other,” she said.

She did not name anyone or refer to any specific case, but her remarks come in the wake of a discharge not amounting to an acquittal (DNAA) granted last year to Deputy Prime Minister Datuk Seri Ahmad Zahid Hamidi who was accused of 47 counts of abusing millions of ringgit belonging to a charitable foundation called Yayasan Akalbudi.

Separately, Tengku Maimun said the Federal Court, being the apex court, cannot depart too easily from precedent especially if a previously decided authority is questioned not so long after it was decided.

She sought to remind the lower courts in the judicial hierarchy that they must remember to abide by precedents set by higher courts.

"In this regard, the individual opinion of a Judge, so to speak, is irrelevant on account of stare decisis," she said, referring to the legal term in Latin meaning "to stand by things decided".

"Even if a Judge or Court believes a decision of the higher Court to be wrong, he is under the obligation to abide by it.

"It would be for the parties to bring that case to the higher court to argue in favour of departing from the previously established precedent if the circumstances warrant it," she said.

She also called out the practice of advocates citing cases without acknowledging said cases have been expressly overruled, a violation of the stare decisis principle the court upholds.

"In any event, when it does happen, it throws judges off as certain propositions appear more convincing than they should be because they are articulated selectively yet disingenuously.

"I think it goes without saying that advocates, especially the senior ones, know that this is not the candour and standard of professional courtesy expected of them and as such, this practice deserves to be called out and must be stopped," she said.