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.