Separation of Power for Public Prosecutor – Attorney General in the Harapan Action Plan

Separation of Power for Public Prosecutor – Attorney General in the Harapan Action Plan

For the purposes of the 15th General Elections (“GE15”), the Pakatan Harapan coalition launched the Harapan Action Plan (“HAP”).[1]

At page 40 of the HAP, the Pakatan Harapan coalition outlined that it intends to separate the roles and responsibilities of the Public Prosecutor from the Attorney General (“the Separation”):

The Separation is not a novel one as it was mooted in Pakatan Harapan’s manifesto for the 14th General Elections.[2]

Unfortunately, despite being successful in the 14th General Elections, the Separation did not materialise during the Pakatan Harapan coalition’s 22 months in power.[3]

In fact, there was controversy surrounding some of the prosecutorial decisions made when Tan Sri Tommy Thomas (Pakatan Harapan coalition’s choice for Attorney General)[4] was the Attorney General.[5]

Post-GE15, Dato’ Seri Anwar bin Ibrahim (Pakatan Harapan’s GE15 candidate for Prime Minister) has been sworn in as the 10th Prime Minister of Malaysia[6] and the current Federal Government is in effect a Pakatan Harapan coalition-led government.

It is now time for Pakatan Harapan to fulfill its plans in the HAP. One of the major institutional reforms planned in the HAP is the Separation.

Some possible models for implementing the Separation can be gleaned from Commonwealth jurisdictions such as Bangladesh, India, Jamaica, and Kenya.[7]

Legally, the Separation would require a constitutional amendment to inter alia Article 145 of the Federal Constitution.[8]

Such a constitutional amendment would require two third majority as per Article 159(3) of the Federal Constitution.[9]

The current Federal Government, led by Dato’ Seri Anwar bin Ibrahim, at the time of writing, appears to have two third majority support in the Dewan Rakyat (lower house of Parliament).[10]

The Pakatan Harapan coalition thus has a golden opportunity to bring about major institutional reform by passing a constitutional amendment act to implement the Separation.

Post-Script: Dato’ Sri Azalina binti Othman Said, the Minister in the Prime Minister’s Department (Law and Institutional Reform), announced on 7th December 2022 that the first steps for the Separation have been taken. [11]


Does the Attorney General (Still) Have Absolute Discretion?

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.


Commentary on Sundra Rajoo’s Judicial Review Application

On 31st December 2019, former director of the Asian International Arbitration Centre (AIAC), Datuk Prof Dr N. Sundra Rajoo (“Sundra Rajoo”) succeeded in his judicial review application against the decision of the Attorney General’s Chambers (“AGC”) to charge him with three counts of criminal breach of trust[1]  involving over RM1 million belonging to AIAC.[2]

The effect of this decision, until and unless a stay of the High Court’s decision is obtained, is that inter alia the criminal breach of trust case against Sundra Rajoo in the Sessions Court has to come to an end.

Leave to proceed with the judicial review application was initially refused by the High Court on the basis that “the decision of the Attorney General in exercising his discretion to prefer charges against the appellant is not amenable to judicial review.”[3]

On appeal, the Court of Appeal was “of the view that the issues raised by the appellant might on further consideration turn out to be an arguable case in favour of granting the reliefs sought for by the appellant.”[4]

The case was then sent back to the High Court and heard on its merits. It was reported that Yang Arif Dato’ Seri Mariana Yahya held that the Attorney-General (“AG”)’s discretionary power under Article 145 (3) of the Federal Constitution to institute, conduct or discontinue any proceedings for a criminal offence is subject to  judicial review.