Two former lord presidents have been cited as affirming that the federal constitution is clear about the exclusive power of the attorney-general over criminal matters and that his decision is not open to judicial review .
Former chief justice Zaki Azmi referred to the judgment of Mohamed Suffian Hashim and Mohamad Salleh Abbas in two criminal cases.
"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 AG) 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."
In a similar vein, Zaki said, Salleh Abas in PP vs Zainuddin in 1986 stated that the constitution gave the AG "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 AG’s forced resignation has no effect whatsoever in law because the AG was appointed by the Yang di-Pertuan Agong on the advice of the prime minister under Article 145(1) and he holds office during the pleasure of the Agong.
The AG'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.
'AG can't tell investigative agencies to close files'
However, the former CJ said, it was not within the AG'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.
The former CJ 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 laps 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 AG’s 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 vs Harun Idris in 1976.
Zaki said that in Malaysia courts cannot on their own initiative or on a complaint from a citizen order a prosecution.
- Bernama
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