In Datuk Zaid bin Ibrahim’s recent interview on Astro Awani,[1] he mentions a number of times that the Attorney General’s discretion is absolute.[2]
Article 145(3) of the Federal Constitution is of relevance:
“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” (Emphasis mine)
The topic of the Attorney General’s discretion was the subject of my conference paper, which was subsequently published in a journal.[3]
The paper traced the courts’ historical position on the reviewability of the exercise of the Attorney General’s discretion.
Up until Peguam Negara Malaysia v Chin Chee Kow (as secretary of Persatuan Kebajikan dan Amal Liam Hood Thong Chor Seng Thuan) and another appeal [2019] 4 CLJ 561 [“Chin Chee Kow”], the apex courts of Malaysia consistently held that the Attorney General’s discretion is absolute or unfettered.[4]
In Chin Chee Kow, the Federal Court agreed with the Court of Appeal’s view that:
(a) the Attorney General only had absolute discretion in criminal matters;[5] and
(b) in non-criminal matters, the Attorney General did not have absolute or unfettered discretion.[6]
This began the departure from years of established precedent on the Attorney General’s discretion.
When it came to Sundra Rajoo a/l Nadarajah v Menteri Luar Negeri, Malaysia & Ors [2021] 5 MLJ 209 (“Sundra Rajoo“), the Federal Court went even further than Chin Chee Kow and held that the Attorney General’s exercise of discretion would be subject to judicial review in appropriate circumstances.[7]
This, in effect, meant that even in criminal matters, the Attorney General no longer has absolute or unfettered discretion.
The current legal position is that the Attorney General has wide discretion.
However, post Chin Chee Kow and Sundra Rajoo, it would no longer be correct to say that the Attorney General has absolute or unfettered discretion.
[1] Astro AWANI, editor. Consider This: Zaid Ibrahim | “Why I’m Returning To UMNO”. 2022. Consider This: Zaid Ibrahim | “Why I’m Returning To UMNO”, https://youtu.be/qTtvQBvSnpM. Accessed 6 September 2022. Youtube.
[2] Ibid.
[3] Kai-Ming, Joshua Wu. “The Reviewability of the Attorney General’s Prosecutorial Discretion.” Journal of Social Science and Humanities, vol. 4, no. 4, 2022, pp. 01-05. Journal of Social Science and Humanities, https://www.jsshjournal.com/uploads/2/6/8/1/26810285/44012021-jssh-01-05.pdf. Accessed 6 September 2022.
[4] Ibid.; see also Kai-Ming, Joshua Wu. “Commentary on Sundra Rajoo’s Judicial Review Application.” Joshua Wu Kai-Ming, 1 January 2020, https://joshuawu.my/commentary-on-sundra-rajoos-judicial-review-application/. Accessed 6 September 2022.
[5] Peguam Negara Malaysia v Chin Chee Kow (as secretary of Persatuan Kebajikan dan Amal Liam Hood Thong Chor Seng Thuan) and another appeal [2019] 4 CLJ 561 (FC), at paragraph 18 read together with paragraph 77
[6] Ibid.
[7] Sundra Rajoo a/l Nadarajah v Menteri Luar Negeri, Malaysia & Ors [2021] 5 MLJ 209 (FC), at paragraph 125
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