THE attorney-general (AG) is vested with prosecutorial power by article 145(3) of the Federal Constitution, which states that the AG “shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial.”

The designation of the AG as the public prosecutor (PP) is found in Section 376(1) of the Criminal Procedure Code (CPC) in the following words:

The AG shall be the PP and shall have the control and direction of all criminal prosecutions and proceedings under this code.

Both of the above provisions have been interpreted by the courts as giving the AG prosecutorial discretion. The discretion was called “very wide” by Lord President Suffian in the Federal Court case of Long bin Samat & Ors v PP (1974). Three years later in Johnson Tan Han Seng v PP (1977) Suffian defined “discretion” to mean “liberty of deciding as one thinks fit”.

The discretion was subsequently said to be “exclusive” in the case of PP v Zainuddin & Anor (1986) where Lord President Salleh Abas said:

“The law and Constitution in giving the attorney-general an exclusive power respecting direction and control over criminal matters expect him to exercise it honestly and professionally. The law gives him a complete trust that the exercise of this power is his and his alone and that his decision is not open to any judicial review.”

Five years later, the discretion was called “unfettered” in Karpal Singh v PP (1991) where Lord President Abdul Hamid Omar said:

“The discretion vested in the AG is unfettered and cannot be challenged and substituted by that of the courts.”

The above was referred to in subsequent cases at the High Court, Court of Appeal and Federal Court. The last was in the case of Ahmad Zubair @ Ahmad Zubir bin Hj Murshid v PP (2014).

Then came the case of Sundra Rajoo a/l Nadarajah v Menteri Luar Negeri, Malaysia & Ors (2021) where Chief Justice Tengku Maimun, delivering the judgment of the Federal Court, said:

“Article 145(3) of the Federal Constitution provides the AG/PP with a wide discretion to institute, conduct or discontinue any proceeding for a criminal offence. This wide discretion means the AG/PP has sole and exclusive discretion in that only he/she can exercise such power. However, the AG/PP does not have absolute or unfettered discretion under article 145(3). (It) is our judgment that in appropriate, rare and exceptional cases, such discretion is amenable to judicial review.” 

To the question whether the exercise of the AG’s discretion pursuant to article 145(3) of the Federal Constitution is amenable to judicial review in appropriate circumstances, the Chief Justice’s answer was: Affirmative, with particular emphasis on the words “appropriate circumstances”.

So, take it to court for a judicial review of the AG’s decision to not further prosecute (nolle prosequi) the criminal case against Ahmad Zahid Hamidi.

Any takers? – September 22, 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.