COMMENT | NFA does not trigger double jeopardy in Zahid's case
COMMENT | After the recent decision to alter the status of Ahmad Zahid Hamidi’s 47 criminal cases from the “discharge not amounting to acquittal” (DNAA) to “no further action” (NFA), the dust seems not to have settled, and questions are still lingering.
To his discredit, Attorney-General (AG) Dusuki Mokhtar, with the greatest respect, seemed to exacerbate the situation when he claimed that classifying the Umno president‘s Yayasan Akalbudi case as requiring NFA as final and decided under his constitutional powers.
He said the case was concluded “once and for all” after prosecutors considered six representations submitted by Zahid’s defence team, along with all relevant issues of fact and law.
On what basis can the AG easily conclude that an NFA for Zahid must mean the 47 criminal charges against the deputy prime minister have finally concluded “once and for all”? Is he implying that an NFA is akin to a full acquittal?
Does the AG mean Zahid is now totally free from all the 47 criminal charges involving multiple counts of criminal breach of trust, corruption, and money laundering related to the misuse of RM27 million of funds at Yayasan Akalbudi, a charity he established to eradicate poverty?
To be fair, the present AG under the Madani government may have lost all the necessary courage to revisit the NFA by reindicting Zahid for the aforesaid 47 criminal charges. Nonetheless, in law, as far as I know, Zahid has not been fully absolved from the same 47 criminal charges. At least not yet.
He is still not a free man in the eyes of the law. He is still a deputy prime minister who is stigmatised and haunted by 47 criminal charges hanging over his head like the Sword of Damocles.
Can Zahid be charged again?
Assuming the AG is replaced, a new AG may possibly have a different consideration. The new AG may want to reindict Zahid for the same 47 criminal charges. Can the new AG do that? Why not?
After all, Zahid has not been fully acquitted and discharged by any court of law. Hence, the principle of double jeopardy, which is encapsulated in the legal maxims “nemo debet bis vexari pro una et eadem causa” (no one should be vexed twice for the same cause) or “Ne bis in idem” (not twice in the same matter), has not yet been triggered.
In simple terms, neither DNAA nor NFA would protect Zahid from being charged again, even for the same 47 criminal charges, despite the aforesaid statement from the AG.
A Grab driver who thought I was still an MP recently asked me, “YB, assuming a new AG is appointed by the present government to substitute the existing AG, is he ready to re-charge Zahid after the NFA has been issued?”
I told the driver I don’t like to speculate, but under the law, the NFA has no force in law, hence it would not bind a new AG.
The driver, however, did not easily give up: “But YB, do you think a new AG would be bold to ignore the prime minister who, in fact, appointed the new AG?”
I told him, “Maybe or maybe not. Who knows, the new AG may ignore any instruction or order from any entity that may want to instruct him and say, ‘Go fly a kite, I will exercise my constitutional power without fear or favour!’” But I remind him that this is a mere speculation.
He nevertheless said to me, “Let us wait until Malaysia has that kind of AG, YB.”
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 Malaysiakini.
