Lawyer Rajesh Nagarajan has cautioned against the misapplication of prosecutorial discretion following the Attorney-General’s Chambers’ (AGC) decision to withdraw a child abuse charge against a caretaker accused of injuring a baby girl under her care.
Rajesh (above) said the move raised serious questions about why a law specifically enacted to protect children was set aside, arguing that it exposed deeper structural flaws in the enforcement of child protection laws in the country.
“The Child Act was enacted for a reason. Parliament recognised that harm to a child is not merely ordinary hurt, but a distinct wrong requiring enhanced protection, stronger denunciation, and a legal framework centred on vulnerability.
“Yet, the attorney-general’s justification treats the Child Act as optional, as though it were merely one charging choice among many, interchangeable with general Penal Code provisions. That position is legally incoherent,” he said in a statement today.
Earlier today, Malaysiakini reported the disappointment of the baby’s parents over the AGC’s decision to withdraw the child abuse charge against the accused caretaker, Wong Pui Lay.
The child’s father, Lim Yi Sheng, said the couple were only belatedly informed that the prosecution intended to proceed with an alternative charge.
Wong was initially charged under Section 31(1) of the Child Act 2001 with abusing a child in a manner which is likely to cause them physical or emotional injury, which could amount to a jail term of up to 10 years, a maximum fine of RM20,000, or both.
The charge was later changed to Section 323 of the Penal Code, which is considered a more general law used in cases affecting adults, allocating a maximum one-year jail term, a fine of up to RM2,000, or both.
The change came at the discretion of the attorney-general, who is empowered under Article 145(3) of the Federal Constitution, to charge, discharge or reduce charges of an offence.
Merely ‘one charging option’
Rajesh criticised the AGC’s justification for the change, saying it treated the Child Act as merely one charging option among many.
He stressed that while prosecutorial discretion is constitutionally permitted, it should operate within the framework of existing laws rather than override them.
“Children cannot lobby, explain, or litigate. Their protection depends entirely on institutions doing what the law requires, not what is convenient.
“When the Child Act is sidelined, the child disappears from the legal analysis, replaced by administrative expediency.
“This is why explanations matter... Without that discipline, the Child Act becomes symbolic, enforced sporadically, and ultimately hollow. A right that depends on grace is not a right at all,” he said.
Rajesh also warned that public confidence in the justice system is eroded by decisions that are immune from scrutiny, pointing to the attorney-general’s recent decision to classify the 47 corruption charges involving Deputy Prime Minister Ahmad Zahid Hamidi as no further action (NFA).
“The subject matter differs, but the mechanism is the same: laws of Parliament neutralised by unreviewable discretion.
“This is not a complaint about outcomes alone. It is a complaint about process, transparency, and constitutional design. When reasons are withheld, discretion hardens into power, and power into immunity,” he said.
Not reflective of true facts
Earlier, Bagan MP Lim Guan Eng had also criticised the AGC’s silence against a sexual assault victim’s bid to seek clarification over its decision to reduce the charge against her attacker without her knowledge.
Single mother Loh Wai Mun wrote to the attorney-general on Jan 9, arguing that the reduced charge does not reflect the true facts of the case, or the level of harm, suffering, and traumatic impact she had suffered.
Her attacker, who initially claimed trial in the Petaling Jaya Sessions Court under Section 376 of the Penal Code for rape, later pleaded guilty to a reduced charge framed under Section 354 for assault intending to outrage a person’s modesty.
The reduced charge came after AGC accepted a letter of representation submitted by the accused, who subsequently paid the RM10,000 fine imposed by judge Syahliza Warnoh.
Loh has yet to receive any response from the AGC regarding her inquiry to this day.
Lim has since called on Minister in the Prime Minister’s Department (Law and Institutional Reform), Azalina Othman Said, to intervene, stressing it is the government’s duty to ensure the safety of women and that sexual assault victims receive justice. - Mkini
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