The future of the discretion to institute, conduct, discontinue criminal proceedings

I refer to Muhd Shafee Abdullah’s lengthy comments on Riza Aziz’s controversial discharge not amounting to an acquittal (DNAA).

At the tail end of his comments, Shafee sets out to state: “The law on prosecutorial discretions of the AG/PP is clear. The latest Federal Court judgment in Chin Chee Kow (2019) has cleared the air, namely, [among others, that] the AG/PP has the sole discretion on matters of prosecution and withdrawal of charges, but his discretionary decision is not unfettered. In suitable cases, the court can review the decision if the decision is flawed by illegality, irrationality or procedural impropriety or arrived at in bad faith.”

Allow me to clear the air on Chin Chee Kow which is reported as Peguam Negara Malaysia v Chin Chee Kow [2019] 3 MLJ 443. 

There were two appeals in that case but the central issue was one, namely whether the decision of the attorney-general to grant or refuse his consent under section 9 of the Government Proceedings Act 1956 in respect of civil cases is non-justifiable or non-reviewable by the courts.

So clearly, Chin Chee Kow dealt with the decision of the AG in respect of civil cases. It was not the discretion of the AG in relation to criminal proceedings.

Notwithstanding that, the Federal Court took occasion to state: “It cannot be disputed that the AG has unfettered discretion in relation to the prosecution of criminal offence based on Art 145 of the Federal Constitution.”

Interestingly, it was Gopal Sri Ram (then a judge of the Court of Appeal), sitting as a High Court judge exercising revisionary powers under section 30 of the Court of Judicature Act 1964, who delivered a defining judgment in Repco Holdings Bhd v PP [1997] 3 MLJ 681 where he said:

“From a reading of the plain language of art 145(3) … the Supreme Law, namely the Federal Constitution, has committed to the hands of the AG the sole power, exercisable at his discretion, to institute, conduct and discontinue criminal proceedings.”

Shafee was the applicant’s counsel in that criminal revision.

But with due respect, Sri Ram was merely stating a long-standing proposition since the Federal Court case of Long bin Samat & Ors v PP in 1974 and that even the courts could not compel the AG to institute any criminal proceedings which he did not wish to institute or to go on with any criminal proceedings which he had decided to discontinue.

Still, less then would the court have the power to compel the AG to enhance a charge when he was content to go on with a charge of a less serious nature.

The importance of the proposition - formulated by Lord President Suffian - is that, as a matter of public law, the exercise of discretion by the AG in the context of Article 145(3) is put beyond judicial review. In other words, the exercise by the AG of his discretion, in one way or another, under Article 145(3), cannot be questioned in the courts by way of judicial review proceedings.

According to Sri Ram, the proposition is not only good law but a good policy. He said:

“For, were it otherwise, upon each occasion that the AG decides not to institute or conduct or discontinue a particular criminal proceeding, he will be called upon to a court of law the reasons for his decision. It will then be the court and not the AG who will be exercising the power under art 145(3). That was surely not the intent on our founding fathers who framed our Constitution for us.”

But propositions are not cast in stone, even if one is good in law and policy.

In England – as rightly alluded to by Shafee – the House of Lords (then the apex court in England) in Council of Civil Service Unions v Minister for the Civil Service (often referred as the GCHQ case) in 1985 has decided that the orthodox Common Law immunity from judicial review of the AG's prerogative or discretionary powers as laid down in an earlier case of Gouriet v Union of Post Office Workers [1978] AC 435 is no longer good law.

The decision in GCHQ has moved the courts in England from a position of deciding whether prerogative powers existed to determining if they were being carried out lawfully.

So, while the judgment in Gouriet is a reflection of past judicial refusal to enquire into the way in which a prerogative power had been exercised, the judgement in the GCHQ is the progressive development of judicial review where the courts have been more willing to review the exercise of discretionary power, whether derived from statute or a prerogative power.

The case of Long bin Samat may not yet be a “past judicial refusal” to enquire into the AG's discretion but the Federal Court decision in Chin Chee Kow certainly stands as the “progressive development of judicial review” in Malaysia that the AG's discretionary powers are amenable to judicial review – in civil cases.

As was said by Raja Azlan Shah CJ (His Majesty then was) in Pengarah Tanah dan Galian, Wilayah Persekutuan v Sri Lempah Enterprise Sdn Bhd [1979] 1 MLJ 135:

“Every legal power must have legal limits, otherwise there is a dictatorship. In particular, it is a stringent requirement that 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.”

Emboldened by such pronouncement by a great judicial luminary, the Federal Court in Chin Chee Kow was quick to add that that unfettered discretion is contradictory to the rule of law. The AG's discretion could not be absolute and therefore subject to legal limits.

Granted, Long v Samat remains good law and good policy.

But one sees no reason why the constitutional discretion under Article 145(3) should not be subject to review on ordinary principles of legality, rationality and procedural impropriety in the same way as any other executive action, as Shafee argues.

Again, in England private individuals may now properly seek judicial review of decisions of the public prosecutor whether or not to initiate criminal proceedings.

The courts in England have consistently held that private individuals may seek judicial review of decisions of the public prosecutor not only in matters of initiation or failure to take court proceedings or to discontinue police investigations but additionally of decisions whether to take over or discontinue ongoing private investigations.

The English Law Lords, sitting in the Judicial Committee of the Privy Council in the case of Mohit v Director of Public Prosecutions of Mauritius in 2006 even went further to emphatically reject a contention that a prosecutorial decision “involves the assessment of factors which the courts cannot and should not seek to review”. The Privy Council refused to disturb what it described as “the ordinary assumption that a public officer exercising statutory functions is amenable to judicial review.”

That the Malaysian AG is a public officer is settled law. In the Supreme Court case of Tun Dato Haji Mohamed Salleh bin Abas v Tan Sri Dato Abdul Hamid bin Haji Omar & Ors [1988] 3 MLJ 149, it was held that the AG is indeed a public officer under the Federal Constitution.

It may well be that a day will come when the Federal Court will have to revisit the proposition in Long v Samat.

That day had duly dawned on Singapore’s courts which have repeatedly affirmed that all powers are subject to legal limits. In Law Society of Singapore v Tan Guat Neo Phyllis, the High Court in 2007 said that under the law, the AG must act according to law, as his prosecutorial power under Article 35(8) of the Singapore Constitution to institute, conduct or discontinue criminal proceedings – similar to Article 145(3) – is not unfettered.

Prosecutorial discretion cannot be exercised in bad faith, full stop.

It was Singapore’s apex court that had set the tone in 1988. In Chng Suan Tze v Minister for Home Affairs, the Court of Appeal said: “The notion of a subjective or unfettered discretion was contrary to the rule of law. All powers have legal limits and the rule of law demands that courts should be able to examine the exercise of discretionary power.”

Talk about the courts that have been much criticised for being compliant and tending to favour the government against its opponents.

Such pronouncements, and the pronouncement in Chin Chee Kow, must be celebrated and embraced – more so by the likes of Thomas, his successor Idrus Harun, Sri Ram and Shafee himself – who argued successfully before Sri Ram in Repco that the only authority that is constitutionally entitled to conduct prosecutions is the AG as the public prosecutor.

One must hope that the Federal Court will revisit Long v Samat in the same way that it did on the judicial power of the Federation of Malaysia – sooner and not later.

- by Hafiz Hassan , Mkini