Can A-G’s prosecution power be challenged?

Attorney-General Tan Sri Mohamed Apandi Ali says there is no criminal wrongdoing when RM2.6 billion was found in Prime Minister Datuk Seri Najib Razak's private bank accounts. – The Malaysian Insider file pic, January 29, 2016.

The controversy continues unabated. It is about the attorney-general’s directive to the Malaysian Anti-Corruption Commission (MACC) to close investigations into the 1Malaysia Devleopment Berhad (1MDB) affair.

Perhaps adding fuel to the fire is the rather abrupt “retirement” of former attorney-general Tan Sri Gani Patail on health grounds while these investigations were initially proceeding (he has since gone on to work for a law firm); and his replacement with the present A-G.

The latest volley in the barrage of citizens’ demand for reasons and accountability for the decision was carried in the Sun by Yayasan 1Malaysia Chairman Dr Chandra Muzaffar, “7 reasons to evaluate AG’s decision” on January 29, 2016.

That is why it is in the interest of all Malaysians to support a thorough evaluation of the AG’s decision. It is wrong to argue that his decision is beyond scrutiny.”

That is the question – is his decision beyond scrutiny?

The simple answer is no. The power given to him by the Federal Constitution to institute any proceedings for an offence is “exercisable at his discretion”. This power is not absolute.

As long ago as 1979, the then chief justice, Sultan Azlan Shah declared in a landmark case that it is wrong to speak of absolute discretion. This is what he said in his usual pithy style:

“Unfettered discretion is a contradiction in terms. 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.”

His Lordship was speaking of the discretion exercised by a land office.

Is it any different with the discretion exercised by the high constitutional office of an A-G?

Well it could be said there is a greater need for this to apply to the A-G’s exercise of discretion. Because outside of his constitutionally prescribed duties, the AG is the guardian of the public interest, a right conferred on him under the common law, which is made applicable by Article 160 of the constitution.

Indeed then Lord President Tun Mohamed Suffian Hashim countenanced a remedy against the decision of an A-G not to prosecute – although he said “but not in the courts”.

The Privy Council, the then highest court for Malaysia, alluded to the many factors which a prosecuting authority may properly take into account in exercising its discretion whether to charge a person at all.

It remarked that this “should not be dictated by some irrelevant consideration”.

To summarise: the A-G’s discretion not to prosecute (or any other power that he is entitled to exercise) is not without limits. It cannot be exercised for an improper purpose and unreasonably; or on the basis of an irrelevant or wrong consideration.

If it is so exercised then it could be subject to challenge through the courts.

In fairness to the A-G, he has invited anyone unhappy with his decision to have the limits of his powers determined by the Federal Court.

For this to be properly determined the A-G should give his reasons. Only then can the court properly evaluate the legal propriety of his decision.

In a landmark English case routinely cited in our courts, the House of Lords said that the ,inister may have good reasons for refusing an investigation.

In this present case, the A-G directed that investigations be stopped although the MACC had asked him to initiate the process for witnesses to be examined.

There was then a duty to give the reasons for the court’s examination. Else it could be assumed there were no good reasons.

Indeed in another English case it was pointed out that if all prima facie reasons point towards one course of action and the minister takes another without giving a reason, the court may infer he has no good reason for the decision and is using his discretion for an improper purpose.

Admittedly these cases involve the exercise of power by a minister in the exercise of administrative functions – as distinct from constitutional powers.

But surely it cannot be denied that public confidence in a prosecutor’s work is the cornerstone of a proper, efficient and fair administration of the justice system.  so these decisions should apply with equal – if not more – force to the A-G’s powers.

Finally, let’s take a page from the Trans-Pacific Partnership Agreement (TPPA) which the government is eager to sign and ratify.

It requires each party to adopt or maintain “measures to promote transparency in the behaviour of public officials in the exercise of public functions”.

Although this provision relates only to international trade and investment matters, should not this be extended to matters over which there seems to be so much disquiet, if not outrage, among the citizenry.

- TMI