LAWYER Mohamed Haniff Khatri Abdulla has called on the Attorney-General’s Chambers to explain to the public why Deputy Prime Minister Ahmad Zahid Hamidi got a discharge not amounting to an acquittal in his corruption cases. 

He said the court had permitted the discharge of Zahid because it was requested by deputy public prosecutor Mohd Dusuki Mokhtar.

But Dusuki in fact listed 11 reasons for the prosecution’s decision to discontinue the proceedings on all charges against Zahid. On the ninth reason, Dusuki said: “The accused also raised a very serious issue in his representation letters, namely the allegation that he is a victim of selective prosecution from the previous government regime. The attorney-general is of the view that it is very important for the prosecution and the MACC to look into and also investigate this claim.”

Perhaps we should recall that former prime minister Najib Razak had filed a civil claim in October 2021 against Tommy Thomas who was then the attorney-general/public prosecutor of Malaysia (AG/PP) as the first defendant and the government as the second defendant (Civil Suit No. WA-21NCvC-193-10/2021). The claim against the government was, however, dropped with Thomas as the sole defendant.

Najib’s claim was premised solely on the conducts and actions of the defendant. It essentially alleged that the defendant as the former AG/PP did not exercise his power for the authorised purpose but for his own agenda. He had allegedly interfered in the investigation and attempted to prejudice and suppress the Plaintiff.

The alleged conducts or actions of the defendant had given rise to the following causes of action upon which the plaintiff had filed the suit for, namely (a) misfeasance in public office; (b) malicious abuse of the legal process or malicious process; and (c) negligence and recklessness in the discharge of duties as attorney-general.

It was alleged that as the PP, the defendant had used the discretionary powers under article 145(3) of the Federal Constitution to charge the plaintiff with 35 offences (under four cases) following the outcome of investigations conducted by the investigating agencies – that is, the police and the Malaysian Anti-Corruption Commission.

The four cases were (a) the 1Malaysia Development Bhd case; (b) the International Petroleum Investment Company case; (c) the alleged abuse of power under the Malaysian Anti-Corruption Commission Act 2009 case; and (d) the alleged money laundering under the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 case.

Interestingly, if not curiously, the SRC International Sdn Bhd case was not included as part of the claim, the case having been decided finally in the Federal Court whereby the conviction of the plaintiff was affirmed. The plaintiff is now serving his prison sentence.

The defendant counter-filed an application to strike out the plaintiff’s claim. In his application, the defendant argued rigorously that the claims should be struck out as there was no cause or no reasonable cause of action and hence it was conspicuously clear that the claim on the face of it is “obviously unsustainable”. This is because the defendant as the PP was conferred a wide discretion and hence enjoyed immunity from any proceedings against him.

Furthermore, the plaintiff’s claims were scandalous, frivolous, vexatious and an abuse of the court’s process. All the three causes of action relate to the defendant’s exercise of his discretion to prefer the 35 charges against the plaintiff in the four cases.

The plaintiff argued with equal rigour, among others, that his main claim against the defendant was about the various conducts and actions of the latter which were oppressive and prejudicial to the plaintiff.

The High Court judge, having perused all the cause papers and heard submissions of both parties, on November 25, 2022 allowed the defendant’s application to strike out.

Justice Ahmad Bache said it was trite that under article 145(3) of the Federal Constitution, the AG/PP was conferred the power to exercise at his discretion to institute, conduct or discontinue any proceeding for criminal offences. (See also section 376 of the criminal procedure code.

According to the learned judge, there are many lines of high authorities that confirmed such powers of the PP and that they are not justiciable. It follows that, except for the recent decision in Sundra Rajoo a/l Nadarajah v. Menteri Luar Negeri, Malaysia & Ors (2021), the discretion whether or not to prosecute cannot be made a subject matter of any proceedings in our court. The learned judge said:

“As the discretion of the AG/PP is almost unfettered, this court ruled that the causes of action for malfeasance, malicious process and negligence do not arise in the first place. This position of the law can be clearly seen in the long line of high authorities.”

In one of the cases (Anwar Ibrahim v. Public Prosecutor (2002)), Federal Court judge Haidar dismissed the contention of vexatiousness or oppressiveness on the part of the AG/PP in preferring charges. The question of oppression or vexatiousness on the part of the AG/PP does not arise when under article 145(3) the AG/PP has the discretion to prefer any charges for offences under any law he deems fit, depending on the facts of the case and taking into account the public interest element into consideration. (See also Karpal Singh & Anor v PP (1991))

The most recent development in respect of the justiciability of article 145(3) is the Federal Court’s decision in Sundra Rajoo. However, the decision did not alter the position of the unfettered discretion of the AG/PP. That decision only opened the avenue of judicial review. Even so, the Federal Court held it was only in rare and exceptional cases that the decision might be judicially reviewed.

Justice Ahmad further observed that the plaintiff’s cause papers did not reveal sufficient details – that is, they were vague, devoid of material facts, substance and particulars. For example, it was explained when, how and what the defendant did that had given rise to the three causes of action of misfeasance in public office, malicious process and negligence against the backdrop of the discretionary powers conferred upon him by the Federal Constitution.

The plaintiff also alleged that the defendant interfered or obstructed investigations but failed to give particulars as to how it was done, for example through coercion of witnesses or forging of evidence. Hence, the plaintiff failed to provide cogent materials to anchor his assertions to support his claims.

In addition, the plaintiff failed to state how the defendant had deliberately acted beyond his powers with malice – that is, that the defendant “had deliberately targeted the plaintiff or had acted under instruction of the Pakatan Harapan government”.

According to the learned judge, the plaintiff “surprisingly also did not plead that his trials in the four criminal cases have already been compromised because of the defendant’s actions” or “why and how the prosecution of the 35 charges (in the four cases) were not in accordance with the law.”

The plaintiff’s claim was accordingly struck out, against which the plaintiff has filed an appeal.

So, while the discretion of the AG/PP to prefer charges or to discontinue proceedings is “almost unfettered”, it is also said that the question of oppression or vexatiousness should not arise.

There is the presumption of constitutionality of prosecutorial discretion – that is, the AG/PP acts in the public interest when he acts in accordance with the law in exercising his discretion to prosecute. The burden lies with the accused person to show that his prosecution was unconstitutional by producing prima facie evidence of the alleged unconstitutionality.

An accused is entitled to make representations to the AG/PP that he is a victim of selective prosecution from the previous government regime. But it is for him to produce prima facie evidence, not for the AG/PP to investigate the claim. – September 5, 2023.

* Hafiz Hassan reads The Malaysian Insight.

* 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.