Let’s the Court decide.
Can the Bar challenge the AG?
The Attorney General (AG) is supposed to be the guardian of the rule of law”.
“Some say this position is probably the most powerful one in Malaysia. However, whether that is true or not is a different question. Currently, he indeed has the [absolute] power to decide whether to institute any criminal proceedings in the court of law. Similarly he decides whether to discontinue a case after one is charged in court.”
AG’s power is conferred to him by Article 145 of the Federal Constitution. Whoever holds this position is appointed by the Yang di-Pertuan Agong on the advice of the Prime Minister. He holds the role as the Chief Adviser to the Government as well as the a Public Prosecutor. He has the duty to advise the government of the day and the Yang di-Pertuan Agong on any legal matter.
The AG’s prosecutorial discretion has not been strictly challenged in our local courts, though on numerous occasions legal issues related to a person’s constitutional rights were raised against AG’s discretion but never with success.
Now the questions I want to put forward are how should the AG exercise his sole and wide discretionary power given in Article 145 (3) ? What if his discretion is wrongly exercised, can it be challenged in court?
Nothing whatsoever is expressly stated in Article 145 that the AG discretion is not subject to judicial scrutiny or review.
In the case of Datuk Seri Samy Vellu v S Nadarajah , the Court held that Article 145 (3) does not confer a monopoly of power on the AG.
In Singapore, the Court of Appeal decided in Ramalingam Ravinthran v The Attorney General , that the AG discretionary powers are not immune to judicial review if they are shown to have been exercised arbitrarily or in breach of a person’s constitutional rights.
Last month, Zaid Ibrahim and Khairuddin have also filed in a similar legal challenge against the AG.
The court should shed some light on this issue in order to improve public perspective of the administration of justice in our country. Or perhaps there is a need to amend the Constitution at the Parliament.