A-G ‘s discretion under Article 145 (3) – Gopal Sri Ram

In the case of Long bin Samat decided in 1974, the Federal Court held that the attorney-general (A-G) had wide discretion to select the provision of the law under which to prosecute a person.

The pronouncement in this case has been read to affirm a wide discretion in the A-G whether to prosecute at all.

But if you look carefully at the judgment of Lord President Suffian in the case, it is clear that the Federal Court was only speaking of the A-G's wide discretion to choose the section of the law under which a person is to be prosecuted.

But in the case of Johnson Tan (1977), Suffian accepted that the discretion is not as wide as thought to be.

This is what he said: "In deciding that the A-G is not constrained by Article 8 when deciding whether or not to prosecute and if so on what charge, whether a lesser or a greater one, it must not be thought that he may act dishonestly.

"The public of whose interest he is the guardian has a right to expect him to act honestly, without fear of powerful national and local figures or of the consequences to him personally or politically, and without favouring his relatives and friends and supporters, his principal concern being to maintain the rule of law so that there will be no anarchy and to maintain standards in public life and the private sector; and if he did not do his duty honestly and properly the public would be able to show their disapproval not however in the courts but elsewhere and in the last resort by voting against the party of which he is a member."

This shows that an A-G must act honestly and that there is a legitimate interest in every member of the public that he will act honestly.

Another way of saying the same thing is that the A-G must act in good faith and must not be swayed by irrelevant considerations.

In 1979, in the case of Sri Lempah, Raja Azlan Shah, then the acting chief justice of Malaya, said this:

"Every legal power must have legal limits, otherwise there is dictatorship. In particular, it is a stringent requirement that a discretion should be exercised for a proper purpose, and that it should not be exercised unreasonably. In other words, every discretion cannot be free from legal restraint; where it is wrongly exercised, it becomes the duty of the courts to intervene."

In Sri Lempah, the Lord President was the presiding judge and obviously agreed with what was said by the then acting CJ of Malaya.

If there is no such thing as an absolute discretion, then it follows that the discretion of the A-G under Article 145(3) is also not not absloute but may be tested in judicial review.

Lastly, it is important to note that the common law of England upon which Article 145(3) is based has itself now recognised that while a decision by the Director of Public Prosecutions (the equivalent of our A-G in criminal cases) to prosecute cannot be challenged in judicial review, a decision not to prosecute can be challenged.

The case in which this was decided is Kebeline in the year 1999.

The law is not static. It is not carved immutably in stone. It develops as time goes by and what was thought to be the law at one point in time may be later found to be wrong and developed along new lines.

Therefore, it may not be correct to say that the decision of the A-G not to prosecute under Article 145(3) of the Constitution cannot be challenged in court.

The point has not been tested here as yet. But in the past our courts have usually followed the English common law.

And if they do so on this occasion then, what was thought to be an unfettered discretion may be departed from.

* Datuk Seri Gopal Sri Ram is a former Federal Court judge. -TMI