Opposing this view is the position of some scholars that the prosecutorial powers of the A-G under Article 145 are subject to judicial review in some circumstances.
COMMENT TUN Mohamed Suffian’s learned decision in Long Samat v Public Prosecutor (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”.
In a similar vein, Tun Salleh Abas in PP v Zainuddin (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”. The A-G’s powers over prosecution are prescribed under section 376 of the Criminal Procedure Code and 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”.
A-G’s discretion: Is the A-G’s discretion to commence or not to commence a criminal prosecution subject to the control of the judiciary? Can the courts issue an order to the A-G to initiate a prosecution? Can the court order the A-G to explain to the court why he is or is not pursuing a case?
The debate on this issue has taken on two extremes. On one side are those who assert that the A-G has an “absolute” or “unfettered” discretion to raise or not to raise a prosecution. No other public authority, including a court, can usurp this “prerogative” of the A-G. Opposing this view is the position of some scholars that the prosecutorial powers of the A-G under Article 145 are subject to judicial review in some circumstances.
A balanced median: I believe that in a constitutional democracy, no power can be absolute or unfettered in the sense that its recipient is 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.
Judicial limits: Having asserted that abuse of power is not condoned by the Constitution, 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 have always recognized some clear limits on what is subject to judicial scrutiny.
Lack of initiative: In common law systems, courts of law do not have a roving mission to discover, investigate and correct criminal wrongs. Courts adjudicate, they do not investigate. The power to move the courts in criminal cases has been assigned by Article 145(3) solely to the A-G who (unlike in countries like India and the UK) is also the Public Prosecutor. The Malaysian demarcation of powers between the executive and judiciary in this area is in line with the doctrine of separation of powers.
The executive sifts through the mass of evidence and decides to prosecute or not to prosecute. The courts judge only what comes before them.
Non-justiciability: There are some well recognized categories of decisions which are so mixed up with public policy, politics, foreign relations, economics and other non-legal factors that the courts are unwilling to review these decisions by reference to “judicial standards”.
Among them are decisions on war and peace, foreign relations, royal pardon, granting of honours, declaration of emergency, arrests under preventive detention laws, promotion, transfer or termination of public servants and the A-G’s prosecutorial powers under Article 145. Note, however, that just because a decision is non-reviewable in a court does not imply that the authority concerned is above the law and is 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.
In criminal cases, whether credible evidence exists, whether the evidence is adequate to mount a case and whether the evidence is rebuttable in reply are questions for the A-G’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”: PP v Datuk Harun Haji Idris (1976).
Further, whether national interest or friendly relations with other states will be served or adversely affected by presenting some evidence or bringing some witnesses to court, are not purely legal questions but are saturated with geo-political considerations.
President Ronald Reagan of the United States sold arms to the Contras in clear violation of US laws. Successive American Presidents and Congresses have transgressed laws by giving financial and military aid to Israel, where aid is used to commit genocide and wars of aggression.
Prime Minister Margaret Thatcher lied to Parliament about the illegal bombing of an Argentinian ship in international waters. But no prosecutions were launched for foreign policy considerations.
Locus standi: In the criminal justice system of Malaysia, the power and responsibility for commencing a criminal proceeding is that of the A-G who (unlike in India and the UK) is also the Chief Public Prosecutor. Nor can the courts act on the application of any other public authority or an NGO because the A-G has exclusive authority: Repco Holdings Bhd (1997). The only exception seems to be that for some minor offences, private citizens can launch a private prosecution with permission of the court.
In Malaysia, the courts cannot on their own initiative or on a complaint from a citizen order a prosecution. The position is similar in the UK where, according to Denning MR in AG ex rel McWhirter v IBA (1973) “in matters which concern the public at large, the Attorney-General is the guardian of the public interest.” In Connelly v DPP (1964) and DPP v Humphreys (1977), the point was affirmed that the functions of prosecutors and of judges must not be blurred. Though a general notion of judicial review for abuse of process has developed recently in the UK, see for example Elguzouli-daf v Commissioner (1995), the general principle is that the prosecutorial function of the A-G is not subject to judicial review.
In Australia, in Barton v The Queen (1980), the learned judges gave a policy reason why courts should not concern themselves with the discretion of the A-G.
They pointed out that it would be “undesirable that the court, whose ultimate function is to determine the accused’s guilt or innocence, should become too closely involved in the question whether prosecution should be commenced”.
In Canada, the Supreme Court in R v Rourke (1977) relied on separation of powers to hold that the exercise of the discretion of the A-G should not be reviewed by the courts.
In India, however, the courts have the power to interfere in prosecutorial decisions. But Indian decisions are inapplicable to Malaysia because in India the federal A-G plays no role in prosecution.
State public prosecutors are appointed under ordinary statute after consultation with the High Court and are attached to state High Courts. In sum, around the world, courts refuse to review matters which can be categorized as “non-justiciable”. The preponderance of legal opinion in the UK, Malaysia and Singapore is that the A-G’s prosecutorial decisions are non-justiciable and are the preserve of the executive.
The courts cannot interfere – at least at the point of initiation. The remedies, if any, against prosecutorial decisions are administrative and political and not judicial.
In Malaysia, the prosecutorial monopoly of the A-G is bolstered because unlike the UK which has no Constitution, we have Article 145 empowering the A-G with an exclusive power to initiate, conduct or discontinue criminal prosecutions: Karpal Singh v PP (1991). Courts have held that Article 145 is not overridden by Article 8 on equality: Johnson Tan Han Seng (1977).
Limits: Despite the breadth of his discretion, the A-G has some limitations. He cannot interfere with Syariah, native and court martial proceedings. He cannot transfer a case to a court that has no jurisdiction over the matter like in the case of Sukma Darmawan (1999).
It is 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 A-G for his prosecutorial decision. Finally, the A-G of the Federation is appointed by the Yang di-Pertuan Agong on the advice of the Prime Minister under Article 145(1). The A-G holds office at the pleasure of the King. As such any resolution by an NGO to call for the A- G’s forced resignation has no effect whatsoever in law.
Zaki Azmi was the sixth Chief Justice of Malaysia