Attorney General, The Most Powerful Man?over 1 year ago
Attorney General, the most powerful man?
The Attorney General of Malaysia,Tan Sri Mohamed Apandi Ali, cleared both Prime Minister and SRC International Sdn Bhd from any criminal offences. He further added that there is ‘insufficient evidence’ to implicate them. But, this only served to puzzle the public and raised more questions rather than answering them.
The Attorney General is known as 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 has the power to decide who to charge in court of law.
The power is conferred to him by Article 145 of the Malaysian Constitution. Whoever holds this position is appointed by the government of the day. He holds the role as the Chief Adviser to the Government. He has the duty to advise the government of the day and the Yang di-Pertuan Agong on any legal matter.
Article 145 of the Federal Constitution
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.
The question that arises here is how a government-appointed AG will be using his discretion? Another question that begs to be asked is whether his discretion can be challenged in court? After all, to err is human.
There seem to be no clear answer on this issue. By reading Art 145, the simple answer might be no.
This is because Art 145 exclusively grants power to the AG, who has the sole discretion to decide whether to prosecute in court. Let us compare this situation with other countries.
Comparison with England and Wales
The 'cash for honours' scandal in England created the debate over the their AG’s involvement in prosecutions. It raised the question whether the AG could genuinely be politically impartial if the prosecution refers to him issues relating to the prospect of government ministers or officials being charged.
The public felt that the AG should step aside from making any decisions in criminal matters involving government officials or ministers.
The House of Lords Select Committee on the Constitution prepared a report in 2007 for reforms on the AG's office. It recommended that the AG prosecution role be separated from his function as the chief legal adviser to the government.
Perhaps, this move could make the AG more impartial when exercising his discretion.
Singapore allows judicial review
Singapore had its own controversy involving the AG prosecutorial discretion in Ramalingam Ravinthran v The Attorney-General CM 60 of 2011.
In this case, the Singapore Court of Appeal accepted the Attorney General’s position that he has no general obligation to disclose his reasons for a particular prosecutorial decision. This is similar to the United States practice
However, the Singapore Attorney-General discretionary powers are not immune to judicial review if they are shown to have been exercised arbitrarily or in breach of an accused person’s constitutional rights. This was stated in the AG's Chambers press release.
‘It is a stringent requirement that a discretion should be exercised for a proper purpose, and that it should not be exercised unreasonably’ - Former Chief Justice, Sultan Azlan Shah
It is clear that there is an option for judicial review in Singapore. However, the question remains unclear in Malaysia on whether the Malaysian court would throw out a judicial review against the AG? The question remain untested. Sultan Azlan Shah, when he was still the chief justice, did point out that it is wrong to speak of absolute discretion.
Currently in Malaysia
Zaid Ibrahim, the former Law Minister, is currently seeking court order to challenge AG’s decision. He filed a judicial review against AG Tan Sri Mohamed Apandi Ali's decision in not prosecuting Datuk Seri Najib and SRC International Sdn Bhd.
He is also seeking leave for judicial review to challenge Tan Sri Mohamad Apandi Ali’s decision in ordering the Malaysian Anti-Corruption Commission (MACC) to close its investigations on the matter.
Zaid argues that the AG’s decision was unreasonable and constituted an improper exercise of discretion. He told The Malaysian Insider there is no such thing in law as the concept of absolute discretion.
Perhaps Zaid’s challenge via the judicial system can shed some light on the question of the AG’s discretion under Art 145.
But, should the AG be given an absolute discretion in prosecuting? Or, should the AG's role as chief adviser to the government be separated from his prosecution functions following the House of Lords recommendation?
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