On some occasions, AG owes a public explanation

When the attorney general (AG) claimed the Attorney-General’s Chambers (AGC) is not obligated to inform the public of its decision to discontinue charges against an accused person, apparently, legal experts and the AG are not on the same page.

The AG Ahmad Terrirudin Mohd Salleh also said, “While discharging this constitutional obligation, the public prosecutor is not bound to furnish any reason whatsoever to any parties”.

Perhaps. But only if transparency, good governance, and public accountability are not important.

To fortify his view, he, as expected, has clung to Article 145(3) of the Federal Constitution which encapsulates the doctrine of prosecutorial discretion of initiating and discontinuing criminal charges.

To be fair to Terrirudin (above), he is arguably right in invoking Article 145(3). Yes, nowhere in the said provision mandating the AG qua public prosecutor to explain his decision in initiating and discontinuing criminal charges.

Apparently, our present AG seems to be very happy in clinging to a literal interpretation of Article 145(3) of our apex law.

With such a bewildering literal interpretation, one thing is for sure, he can now confidently say, “Sorry guys I am not bound to explain why I decided to drop or withdraw all 47 criminal charges against Umno president cum deputy prime minister of the Madani government Ahmad Zahid Hamidi.”

Unfortunately, by resorting to such a mind-boggling decision, he may have inadvertently overlooked that his decision has led some people to unfairly shift the blame on the judiciary.

Be that as it may, the Chief Justice (CJ) was perfectly right when she lamented that the judiciary has been unfairly vilified for the decisions of the other parts of the country’s justice system.

As a constitutional lawyer, I used to argue many constitutional points in our court. In a slew of cases, I did challenge the discretionary power of the AG in Article 145(3) of our supreme law.

Whilst preparing the “getting up” (legal authorities) for the cases, I came across a few decisions from other jurisdictions which held that the AG’s decision was not absolute and in certain circumstances, such a decision would be amenable to judicial review.

To my surprise, even the court in Singapore did allow litigants to challenge the decision of the AG.

In the case involving a former director of Asian International Arbitration Centre (AIAC) N Sundra Rajoo, the Federal Court, inter alia, ruled that the AG did not have absolute and unfettered discretion and in appropriate, rare, and exceptional cases that discretion was amenable to judicial review.

I am of the view that Zahid’s case is one such appropriate, rare and exceptional case in which the AG definitely owed an explanation to the public as to why he decided to enter nolle prosequi despite the fact the prosecution managed to convince the judge that Zahid needed to call for a defence as the prosecution successfully proved a prima facie case.

Finally, Malaysia is also practising a parliamentary democracy. As a former deputy minister of law, I was invariably bombarded with questions by MPs regarding the decision made by the AG. - Mkini

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MOHAMED HANIPA MAIDIN is a former MP for Sepang and former deputy minister in the Prime Minister’s Department (Legal Affairs).

The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.