A-G’s decision to prosecute not subject to judicial review, says former top judge

(Bernama) – Case law states that the power of the Attorney-General over criminal matters and his decision whether or not to prosecute is not open to judicial review, says former Chief Justice Tun Zaki Tun Azmi (pic).

He cited two cases where two former Lord Presidents – Tun Mohamed Suffian Hashim and Tun Mohamad Salleh Abbas – affirmed that the Federal Constitution is clear about the A-G’s powers.

“Tun Suffian’s learned decision in Long Samat v Public Prosecutor in 1974 provides a nice backdrop to the controversy raging today about the nature of the Attorney-General’s prosecutorial powers.

“Courts cannot compel (the A-G) to institute any criminal proceedings which he does not wish to institute or to go on with any criminal proceedings which he has decided to discontinue,” he said.

In a similar vein, Zaki said Tun Salleh Abas in PP v Zainuddin in 1986 stated that the Constitution gave the A-G “an exclusive power respecting direction and control over criminal matters” and “his decision is not open to any judicial review”.

Zaki also said that any resolution by an NGO to call for the A-G’s forced resignation had no effect whatsoever in law because he was appointed by the Yang di-Pertuan Agong on the advice of the Prime Minister under Article 145(1) of the Constitution and he holds office at the pleasure of the King.

The A-G’s powers over prosecution, he said, were prescribed by Section 376 of the Criminal Procedure Code and under Article 145(3) of the Federal Constitution.

“Under Article 145(3), 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 Syariah Court, a native court or a court-martial,” Zaki said.

However, the former Chief Justice said, it was not within the A-G’s power to order investigative agencies to discontinue their investigations or close their files.

“They remain free under their parent law to do their work diligently and independently, to close or reopen their files and to submit and re-submit their findings to the AG for his prosecutorial decision,” he said.

Zaki, however, believed that in a Constitutional democracy, no power can be absolute or unfettered in the sense that its recipient was free to abuse his position, act mala fide (in bad faith) or with bias.

“Public office is a public trust. All public powers must be exercised in good faith, in a neutral, detached manner, in accordance with the existing law and with the public interest in mind.

“Words such as ‘absolute’ and ‘unfettered’ to describe the power of a constitutional agency are anachronistic and must be discouraged,” he said.

Zaki asserted that abuse of power is not condoned by the Constitution, but it must also be made known that not every issue of state is required automatically to end up in the lap of the judiciary.

Constitutional and administrative law has always recognised some clear limits on what is subject to judicial scrutiny, he said.

Zaki however stressed that although a decision was non-reviewable in a court it did not imply that the authority concerned was above the law and was free to act arbitrarily.

“It simply means that the decision is unsuitable for judicial scrutiny.

“Other, more adequate, alternative remedies may exist, for example a parliamentary inquest during question time, an electoral censure during elections or an enquiry by a Royal Commission,” he said.

Zaki said that in criminal cases, whether credible evidence exists or whether the evidence is adequate to mount a case and whether the evidence is rebuttable in reply are questions for the A-Gs discretion.

“He determines ‘all important questions of policy … and the attitude to be adopted by the prosecution towards material objections raised or demands made by the accused with respect to the evidence,” he said, alluding to the case of PP v Datuk Harun Idris in 1976.

Zaki said that in Malaysia courts could not order a prosecution on their own initiative or on a complaint from a citizen.