In law, judicial review asks whether the decision-maker considered irrelevant factors, ignored relevant ones, acted in bad faith or reached a conclusion no reasonable authority could reach (Part 2).
Commentary And Analysis . . . In Part 1, we saw The Perilous Precipice Reconsidered In Deputy Prime Minister and Umno President Datuk Seri Ahmad Zahid’ Hamidi’s Case. Prosecutorial Discretion, Judicial Review, Law and the Primacy of Doctrine arise!
Law states. It does not state opinion. The iceberg, based on Ernest Hemingway’s theory on writing, shows the tip. We focus on the tip; the readers explore the rest of the iceberg.
III. Locus Standi, Motive, and the Burden of Proof [Onus Probandi].
The article’s core assault was on legal standing. It questions whether the Bar’s judicial review makes it “sufficiently aggrieved” and pairs that with a lengthy account of the Bar’s past criticism of Umno, implying a bias [parti pris] that defeats legitimacy.
Law
In law, this collapses two distinct inquiries:
A. Threshold of Standing
Judicial review Malaysian law permits representative bodies to file judicial review on public interest grounds. The Bar Council was a statutory body under the Legal Profession Act 1976, charged with upholding the rule of law.
In Malaysian Trade Union Congress v Menteri Sumber Manusia and QSR Brands v Suruhanjaya Syarikat, legal standing was recognised where the constitutional order was engaged.
The Bar meets the threshold.
The article cites no contrary authority. [Rechtsstaat or rule of law].
B. Merits and Motive
In law, judicial review examines the decision, not the challenger.
Council of Civil Service Unions v Minister for the Civil Service establishes that review turns on illegality, irrationality, and procedural impropriety, not on the applicant’s politics or past speech.
By demanding that the Bar prove its disinterestedness, the article inverts the burden of proof [onus probandi].
The Attorney General’s DNAA recommendation was on trial; the Bar was not.
Impugning named lawyers as “self-proclaimed” with “a political axe for grinding” was argument ad hominem [argument against the person].
Arguments stand or fall apart from their author.
Category Error
The article thus applies a legal test for the Attorney General and a political purity test for the Bar.
That’s not symmetry; it’s category error.
IV. The DNAA Regime: Section 254 and the Omitted Section 254A.
The article discusses Section 254 of the Criminal Procedure Code, the Public Prosecutor’s power on withdrawing charges, resulting in a discharge but not amounting to acquittal.
It omits Section 254A, under which the court may grant a discharge amounting to acquittal in defined circumstances.
The omission matters.
If Section 254 DNAA was quashed on review, the court cannot compel prosecution.
As held in PP v Karpal Singh and Long bin Samat v PP, courts do not direct the Public Prosecutor on instituting proceedings.
The likeliest remedy would be for remitting the matter, leaving the trial court considering its powers under Section 254A or the Public Prosecutor may reconsider.
By ignoring Section 254A, the article overstates the consequence of review and inflates its “assault on prerogative” claim.
V. Comparative Law: Rarity Was Not Prohibition.
The article observes that the English Bar “does not routinely insert itself” and that Australian law “confines standing”.
True as description, irrelevant as prescription.
In R v DPP, ex parte Kebilene, prosecutorial decisions are reviewable, albeit rarely disturbed.
In Likiardopoulos v The Queen, Australian courts affirm jurisdiction while applying a high threshold.
Both jurisdictions apply a Wednesbury/irrationality test, the same test applied in Repco Holdings v PP. Institutional reticence was not a jurisdictional bar.
The article substitutes practice for principle.
In Part 3 we will look at the 11 grounds for Zahid’s DNAA (discharge not amounting for acquital) — NMH
Longtime Borneo watcher Joe Fernandez has been writing for many years on both sides of the Southeast Asia Sea. He should not be mistaken for a namesake formerly with the Daily Express in Kota Kinabalu. JF keeps a Blog under FernzTheGreat on the nature of human relationships.
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