GIVEN the Malaysian Bar’s announcement yesterday that it filed a judicial review against the Attorney General’s (AG) decision to apply for a discharge not amounting to an acquittal in deputy prime minister Zahid Hamidi’s case, it is instructive to look at the High Court case of Shashi Kumar a/l Shanmugam & Ors v Ketua Polis Negara, Polis DiRaja Malaysia & Anor. 

The case concerns the application for leave for judicial review under Order 53 of the Rules of Court 2012 by five applicants seeking reliefs of an order of “certiorari” to quash the AG’s decision to take no further action (NFA) against Ustaz Mohd Syakir; an order of “mandamus” to instruct the AG to take action against the accused; and a declaration that NFA decision is legally invalid and an abuse of power. 

After hearing the parties, High Court judge Ahmad Kamal dismissed the application. The learned judge said: “The low threshold test set out in various case laws is no longer applicable to this application. The threshold for this leave application will be subjected to a higher standard of review.” 

The judge ruled that the applicants had failed to cross this high threshold as they could not provide more than police reports and excerpts of speeches to challenge the strong presumption of legality and they failed to demonstrate that the AG had acted with mala fide (bad faith). 

In the Rosli Dahlan v Tan Sri Abdul Gani Patail & Ors case, the apex court ruled that the AG’s power to give consent or otherwise under Section 9(1) of the Government Proceedings Act 1956 was not absolute and was subject to legal limits. Unfettered discretion was contradictory to the rule of law. 

In the Peguam Negara Malaysia v. Chin Chee Kow case, the apex court ruled that the AG did not have absolute discretion under Article 145(3) of the Federal Constitution to institute, conduct or discontinue any proceeding for a criminal offence.  

It needs to be emphasised that only in appropriate and exceptional cases is such discretion amenable to judicial review. This is because a decision made by the AG is cloaked by the presumption of legality. The burden therefore lies on the challenging party to rebut the presumption of legality by adducing compelling prima facie evidence. 

According to Justice Ahmad Kamal, at the leave stage for judicial review, it is incumbent on the applicant to satisfy a two-step threshold: 

First, the applicant needs to show he has the legal basis to challenge the decision of the AG on the traditional grounds of judicial review which among others includes illegality, procedural impropriety, irrationality, and mala fides. The burden of proof lies on the applicant. 

Second, the applicant needs to adduce compelling and prima facie proof that the decision or omission of the AG falls within one of the grounds or any one of them. Once the threshold is crossed, the burden lies on the AG to justify his actions or inactions in court.

So, while the AG’s power under Article 145(3) is reviewable, it is subject to a high threshold of scrutiny. It remains to be seen if the Malaysian Bar will meet this requirement in its leave application for judicial review. – December 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.