THE power remains with the attorney-general, which is exercisable at his discretion “to institute, conduct or discontinue any proceedings for any offence” in the ordinary courts under Article 145(3) of the federal constitution. 

A certain Tommy Thomas, more than 35 years ago, contended that the said Article was the greatest source of powers of the attorney-general.

Thomas even went as far as contending that the attorney-general wielded greater power than any other person in Malaysia.

He further wrote:

“The judiciary has rejected any invitation to review the attorney-general’s discretion, which has resulted in him having virtually absolute and limitless discretion in this important area of public life.

“No person or body (including the courts) can compel him to institute any criminal proceedings which he does not wish to institute or to continue the same which he has decided to discontinue.

“Constitutionally, the attorney-general does not have to consult any person, including the prime minister or the home minister, when exercising his powers in relation to criminal prosecutions. This means that technically, the prime minister and his cabinet may be charged in criminal proceedings at the instance of the attorney-general.”

As the attorney-general, Thomas did charge a former prime minister, a former deputy prime minister and a former minister, among others.

He did also discontinue criminal proceedings against a former chief minister, who was then a minister, and 12 men facing charges under the Security Offences (Special Measures) Act (Sosma) – including 2 state assemblymen – instituted at the instance of the public prosecutor aka attorney-general. 

In his own words, no person or body can compel the attorney-general to institute or discontinue these criminal proceedings.

So, why was Thomas so riled up when the sitting attorney-general discontinued criminal proceedings against Riza Aziz?

Riza, the step son of former prime minister Najib Razak, was facing five charges for receiving proceeds of unlawful activity totalling US$248 million (RM1.08 billion) linked to 1Malaysia Development Bhd (1MDB) between April 2011 and November 2012.

Thomas asserted that he would never have sanctioned the deal proposed by Riza to settle his money-laundering charges.

“I would have lost all credibility in the eyes of the people of Malaysia, whom I endeavoured to serve as public prosecutor to the best of my ability, honestly and professionally, if I had approved it,” he said in a May 18 statement.

Perhaps.

But it was an ad hoc senior deputy public prosecutor appointed by Thomas who stood before the Sessions Court judge and, pursuant to section 254 of the Criminal Procedure Code, informed the judge that he would not further prosecute the accused.

Gopal Sri Ram is a much-respected senior lawyer who has served with distinction as a superior court judge in the Court of Appeal and Federal Court. Would he too have lost all credibility in the eyes of the people of Malaysia by standing before the Sessions Court judge – a subordinate court judge – and declining to further prosecute Riza?

It was Sri Ram (then a judge of the Court of Appeal) who delivered a defining judgment in Repco Holdings Bhd v PP [1997] 3 MLJ 681 where he said:

“From a reading of the plain language of art 145(3)… the supreme law, namely the federal constitution, has committed to the hands of the attorney-general the sole power, exercisable at his discretion, to institute, conduct and discontinue criminal proceedings.”

But with due respect, Sri Ram was merely stating a long-standing proposition since the federal court case of Long bin Samat & Ors v PP in 1974 and that even the courts could not compel the attorney-general to institute any criminal proceedings which he did not wish to institute or to go on with any criminal proceedings which he had decided to discontinue. Still less than would the court have power to compel the attorney-general to enhance a charge when he was content to go on with a charge of a less serious nature.

The importance of the proposition – formulated by Lord President Suffian – is that, as a matter of public law, the exercise of discretion by the attorney-general in the context of Article 145(3) is put beyond judicial review. In other words, the exercise by the attorney-general of his discretion, in one way or another, under Article 145(3), cannot not be questioned in the courts by way of judicial review proceedings.

According to Sri Ram, the proposition is not only good law but good policy. He said:

“For, were it otherwise, upon each occasion that the attorney-general decides not to institute or conduct or discontinue a particular criminal proceeding, he will be called upon to a court of law the reasons for his decision. It will then be the court and not the attorney-general who will be exercising the power under art 145(3). That was surely not the intent on our founding fathers who framed our constitution for us.”

But propositions are not cast in stone, even if one is good in law and policy. 

In England, since the decision of the House of Lords (then the apex court in England) in Council of Civil Service Unions v Minister for the Civil Service (often referred as the GCHQ case) in 1985, the orthodox common law immunity from judicial review of the attorney-general’s prerogative or discretionary powers as laid down in an earlier case of Gouriet v Union of Post Office Workers [1978] AC 435 is no longer good law.

The decision in GCHQ has moved the courts in England from a position of deciding whether prerogative powers existed to deciding if they were being carried out lawfully.

So, while the judgment in Gouriet is a reflection of past judicial refusal to enquire into the way in which a prerogative power had been exercised, the judgement in GCHQ is the progressive development of judicial review where the courts have been more willing to review the exercise of discretionary power, whether derived from statute or a prerogative power.

The case of Long bin Samat may not yet be a “past judicial refusal” to enquire into the attorney-general’s discretion but the recent decision of the Federal Court in Peguam Negara Malaysia v Chin Chee Kow [2019] 3 MLJ 443 certainly stands as the “progressive development of judicial review” in Malaysia that the attorney-general’s discretionary powers are amenable to judicial review.

As was said by Raja Azlan Shah CJ (as his majesty then was) in Pengarah Tanah dan Galian, Wilayah Persekutuan v Sri Lempah Enterprise Sdn Bhd [1979] 1 MLJ 135:

“Every legal power must have legal limits, otherwise there is dictatorship. In particular, it is a stringent requirement that a discretion should be exercised for a proper purpose, and that it should not be exercised unreasonably. In other words, every discretion cannot be free from legal restraint; where it is wrongly exercised, it becomes the duty of the courts to intervene.”

Emboldened by such pronouncement by a great judicial luminary, the Federal Court in Chin Chee Kow was quick to add that that unfettered discretion is contradictory to the rule of law. The attorney-general’s discretion could not be absolute and therefore subject to legal limits.

Granted, the Federal Court also said that it could not be disputed that “the attorney-general has unfettered discretion in relation to prosecution of criminal offences based on art 145 of the federal constitution.” Hence, the proposition in Long v Samat remains good law and good policy.

But one sees no reason why the constitutional discretion under Article 145(3) should not be subject to review on ordinary principles of legality, rationality and procedural impropriety in the same way as any other executive action.

Again in England, private individuals may now properly seek judicial review of decisions of the public prosecutor whether or not to initiate criminal proceedings.

The courts in England have consistently held that private individuals may seek judicial review of decisions of the public prosecutor not only in matters of initiation or failure to take court proceedings or to discontinue police investigations, but additionally of decisions whether to take over or discontinue ongoing private investigations.

The English Law Lords, sitting in the Judicial Committee of the Privy Council in the case of Mohit v Director of Public Prosecutions of Mauritius in 2006 even went further to emphatically reject a contention that a prosecutorial decision “involves the assessment of factors which the courts cannot and should not seek to review.” The Privy Council therefore refused to disturb what it described as “the ordinary assumption that a public officer exercising statutory functions is amenable to judicial review.”

That the Malaysian attorney-general is a public officer is settled law. In the Supreme Court case of Tun Dato Haji Mohamed Salleh bin Abas v Tan Sri Dato Abdul Hamid bin Haji Omar & Ors  [1988] 3 MLJ 149, it was held that the attorney-general is indeed a public officer under the federal constitution.

It may well be that a day will come when the Federal Court will have to revisit the proposition in Long v Samat.

That day had duly dawned on the Singapore’s courts which have repeatedly affirmed that all powers are subject to legal limits. In Law Society of Singapore v Tan Guat Neo Phyllis, the high court in 2007 said that under the law, the attorney-general must act according to law, as his prosecutorial power under Article 35(8) of the Singapore constitution to institute, conduct or discontinue – similar to Article 145(3) – is not unfettered.

Prosecutorial discretion cannot be exercised in bad faith, full stop.

It was Singapore’s apex court that had set the tone in 1988. In Chng Suan Tze v Minister for Home Affairs, the Court of Appeal said that “the notion of a subjective or unfettered discretion was contrary to the rule of law. All powers have legal limits and the rule of law demands that courts should be able to examine the exercise of discretionary power.”

Talk about the courts that have been much criticised for being compliant and tending to favour the government against its opponents.

Such pronouncements, and the pronouncement in Chin Chee Kow, must be celebrated and embraced – more so by the likes of Thomas, his successor Idrus Harun and his appointee Sri Ram.

One must hope that the Federal Court will revisit Long v Samat as it did on judicial powers of the Federation of Malaysia – soon and not later. – May 31, 2020.

* 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.