Considering the implications of the Attorney General’s wide discretionary powers and why even the humblest citizenry ought to be more vigilant towards any abuse of those powers.
Recently, a few of my clients who needed criminal law advice asked me a similar question.
Question: “If there is no clear evidence, why are the police still pressing charges?”
This question is conceptually incorrect as you may already know that the police has no authority to determine whether to press charges or otherwise. Telling them the police has no power to do so, does not really clear their doubts and I took the opportunity to explain to my clients that only the Attorney General (AG) can decide who, when and where to prosecute.
My client responded, “In that case, isn’t he the superman of Malaysia?”
Answer: “Well, that is quite subjective but if someone were to look into the context of the Federal Constitution, the answer is yes.”
So who is this AG and why is his office so powerful?
The AG is an individual appointed by the government of the day to carry out legal affairs of the government. His main responsibilities are:
(a) Chief legal adviser to the Government;
(b) Guardian of the rule of law; and
(c) Superintendence of the prosecuting departments.
Article 145 of the Federal Constitution provides amongst others:
– It shall be the duty of the Attorney General to advise the Yang di-Pertuan Agong or the Cabinet or any Minister upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Yang di-Pertuan Agong or the Cabinet, and to discharge the functions conferred on him by or under this Constitution or any other written law.
– The Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial.
There is an existing argument that the AG should be made accountable to Parliament and his office be granted access to the members of parliament from the opposition which I do not wish to dwell into at this moment.
What I wish to elaborate is the extensive powers of the AG affecting the lay man on the street.
To have a better understanding of Article 145(3) of the Federal Constitution, I have dissected this section into 3 parts: institute, conduct and discontinue.
The word “institute” in this context has been judicially examined in PP v Lim Shui Wang & Ors  1 MLJ 65 where Suffian Lord President observed that “the word institute” means “to set on foot, initiate, start,” and in Public Prosecutor v Datuk Harun Bin Haji Idris  MLJ 116, the judge refers it to the “commencement of proceedings and prosecutions.”
For a lay person like you and me, it simply means that the AG has a discretionary power to decide whether to charge a person or otherwise. Conversely, the police do not have the power to determine whether to charge but were only limited to investigating duties.
In practice, it is then translated to this – after a complainant made a police report, his/her matter will be referred to an investigating officer (IO). An investigating paper (IP) will be opened and upon completing investigation, the IP will then be sent to the office of the AG. The Deputy Public Prosecutor who were delegated certain powers of the AG, upon examining the IP will decide whether to charge or otherwise.
To illustrate the discretionary power to institute proceedings, it is interesting to contrast the 2 high profile cases of Dato’ Seri Anwar Ibrahim and Datuk Seri Dr. Chua Soi Lek. Notwithstanding that both of them have police report made against them for committing carnal intercourse against the order of nature, one is facing a charge in the High Court while the other is claiming the throne of MCA.
Both are investigated under a similar section under the Penal Code which states:
Any person who has sexual connection with another person by the introduction of the penis into the anus or mouth of the other person is said to commit carnal intercourse against the order of nature.
But both of them obviously do not share similar fate.
Power to conduct may not be as controversial as the former but remains important as it gives the AG’s office the exclusive right to prosecute and conduct proceedings. The consequence of this ruling is to deprive the prosecuting officers of other government agencies to conduct prosecutions unless authorised in writing by the AG’s office.
The most obvious manifestation of this aspect of the AG’s powers would be the outright withdrawal of charges in cases pending before the courts. If you could recall, the most recent one was after the High Court acquitted a political analyst of abetting the murder of a Mongolian woman, prosecutors from the AG’s office decided not to appeal against the verdict. This has attracted much criticisms from the society but as far as the law is concerned, the AG’s office has not contravene any of the laws in Malaysia on the contrary has complete powers to not appeal against the decision of the High Court Judge.
Unease over the AG Chambers is a widely share sentiment among many Malaysians. The Rakyat yearns to see more reforms are carried out to curtail its wide discretionary powers. The powers although granted by the FC should not be exercised arbitrarily. Many have suggested that the AG should be made accountable to Parliament and to also consider in establishing a position similar to that in other Commonwealth countries where the power to review evidence and conduct the prosecution of offences is held by a director of public prosecution.
No matter what the reforms are, I believe that it is the tax-payers’ funds that ultimately pay for all criminal prosecutions and hence we should take personal interest in getting to know more about the AG’s powers and be vigilant towards the abuse, like how most of us are drawn in to the powers of superman, a man of steel who would only use his super powers to save the world, and nothing else.
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