Reviewing the AG’s prosecutorial powers


RECENTLY, the attorney-general (AG) made several decisions criticised by various quarters. Here are some of the more notable ones:

  1. The AG’s move to withdraw its appeal against the Court of Appeal’s decision to acquit former Federal Territories minister Tengku Adnan Tengku Mansor in a RM2 million corruption case, even though the court was not unanimous in setting aside the conviction. Lawyers have questioned this move and it has led the Malaysian Bar to request an explanation from the AG on its decision to withdraw. (The Edge, November 18, 2021)
  2. The AG chose not to appeal against the High Court’s decision when it dismissed the government’s forfeiture suit and ordered the government to return a whopping RM114 million allegedly misappropriated from 1Malaysia Development Bhd to Umno and former prime minister Najib Razak.
  3. Despite the seriousness of the offences committed by four Serba Dinamik officers, which would have led to a fine and prison terms of up to 10 years each, the AG merely imposed maximum fines instead of initiating criminal charges against the officers. The AG’s decision not only led to the mass resignation of the chairman and other senior officials of the Securities Commission, but it also drew criticisms from various quarters, which continued even though the AG had provided an explanation.

In cases of public importance such as these, it is submitted that dissatisfied parties may now apply to the court for a judicial review against the AG’s decision. It is, however, subject to the conditions imposed by the Federal Court. This view is supported by the Federal Court case of Sundra Rajoo a/l Nadarajah v Menteri Luar Negeri, Malaysia & Ors [2021] 5 MLJ 209.

Current law on AG’s discretion

Article 145 of the Federal Constitution houses the position of the AG, who is an appointee of the prime minister (the executive). The prosecutorial powers of the AG in article 145(3) expressly state that

“The Attorney General shall have power, exercisable at his discretion, to institute, conduct, or discontinue any proceedings for an offence, other than proceedings before a shariah court, a native court, or a court martial.”

The Federal Court, in the case of Sundra Rajoo had concluded that the AG’s discretion, under article 145(3) of the Federal Constitution, is open to judicial review in appropriate circumstances.

The Federal Court was of the view that although the AG may have the sole and exclusive discretion to institute, conduct or discontinue any proceedings for an offence, nevertheless, he does not have the absolute discretion to do so under article 145(3). Accordingly, since the AG’s discretion (be it statutorily or constitutionally prescribed) involves the exercise of executive powers, his discretion is open to judicial review. This is a welcome departure from the previous position where the courts had refused to review the AG’s decision (See the Federal and Supreme Court decisions of Long Bin Samat & Ors v PP [1974] 2 MLJ 152 and  PP v Zainuddin & Anor [1986] 2 MLJ 100).

The Federal Court had also rightly pointed out that unfettered discretion contradicts the rule of law which in turn, it is argued, will also breach the equality provision in article 8 of the Federal Constitution.

Based on this decision, parties who are dissatisfied with the recent decisions of the AG may now apply to the court to review his decisions.

Any challenge against the AG’s decision however must pass the two-step threshold that the Federal Court has set out.

First, the applicant must show that he has a legal basis to challenge the decision of the AG. This may refer to the traditional grounds of judicial review (illegality, procedural impropriety, and irrationality) or other grounds.

Once the grounds are set out, the applicant will have to adduce compelling proof that the decision or omission of the AG falls within those grounds or any one of them. The applicant will have to satisfy a “higher standard of review”. The court will presume that the AG’s decisions are legal unless the challenging party can rebut the presumption by adducing compelling prima facie evidence, which shows that the AG’s decision ought to be reviewed. In some cases, that may be self-evident on the facts of a particular case (for example, where a less culpable offender is charged with a more serious offence while his more culpable co-offender is charged with a less serious offence and there are no other facts to show a lawful differentiation between their respective charges).

When these thresholds are fulfilled, the burden will shift to the AG to justify his actions or omissions to the court, failing which the court will make the necessary orders against the AG.

The once impregnable prosecutorial discretion of the AG under article 145(3) of the Federal Constitution is now open to judicial review. Instead of criticising, dissatisfied parties may now take a further step by applying to the court to review the AG’s decisions. – May 28, 2022.

* Mark Goh Wah Seng is a senior lecturer at a private university.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.



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