by Joshua Wu Kai-Ming | Sep 7, 2022 | Law
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.
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by Joshua Wu Kai-Ming | Aug 9, 2022 | Law
In the following Commonwealth jurisdictions, the roles of the Attorney General and Public Prosecutor (or its equivalent) are fully separated into different offices.
Selected Commonwealth jurisdictions where the roles are fused instead, are considered in a previous article.[1]
A. BANGLADESH
The Government appoints Public Prosecutors who are in charge of criminal prosecution
Section 492(1) of the Code of Criminal Procedure, 1898 provides:
“The Government may appoint, generally, or in any case, or for any specified class of cases, in any local area, one or more officers to be called Public Prosecutors.”[2]
Public Prosecutors can only withdraw prosecutions with the consent of the Court
Section 494 of the Code of Criminal Procedure, 1898 states:
“Any Public Prosecutor may, with the consent of the Court, before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried …”[3] (Emphasis mine)
This acts as a check and balance mechanism.
The Attorney General is the legal advisor to the Government
The website of the Law and Justice Division of the Ministry of Law, Justice and Parliamentary Affairs of Bangladesh mentions the following:
The President appoints the Attorney General
Article 64 of the Constitution of the People’s Republic of Bangladesh specifies that:
“The President shall appoint a person who is qualified to be appointed as a Judge of the Supreme Court to be Attorney-General for Bangladesh.”[4]
B. INDIA
The Public Prosecutor is in charge of criminal prosecutions
Section 24(1) of the Code of Criminal Procedure 1973 provides:
“For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be.”[5] (Emphasis mine)
The Central/State Government(s), after consultation with the High Court, appoint the Public Prosecutor
See Section 24(1) of the Code of Criminal Procedure 1973 above.
This acts as a check and balance mechanism.
Public Prosecutors can only withdraw prosecutions with the consent of the Court
Section 321 of the Code of Criminal Procedure 1973 states:
“The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried …”[6] (Emphasis mine)
This acts as a check and balance mechanism.
The Attorney General is the legal advisor to the Government
Article 76(2) of the Constitution of India 1950 mentions the following:
“It shall be the duty of the Attorney-General to give advice to the Government of India 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 President, and to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force.”[7]
The President appoints the Attorney General
Article 76(1) of the Constitution of India 1950 specifies that:
“The President shall appoint a person who is qualified to be appointed a Judge of the Supreme Court to be Attorney-General for India.”[8]
C. JAMAICA
The Director of Public Prosecutions is in charge of criminal prosecutions
Section 94(3) of the Jamaican (Constitution) Order in Council 1962 provides:
“The Director of Public Prosecutions shall have power in any case in which he considers it desirable so to do—
a. to institute and undertake criminal proceedings against any person before any court other than a court-martial in respect of any offence against the law of Jamaica;
b. to take over and continue any such criminal proceedings that may have been instituted by any other person or authority, and
c. to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority.”[9] (Emphasis mine)
The Governor General appoints the Director of Public Prosecutions
The website of the Office of the Director of Public Prosecutions of Jamaica states:[10]
The Attorney General is the principal legal advisor to the Government
Section 79(1) of the Jamaican (Constitution) Order in Council 1962 mentions the following:
“There shall be an Attorney-General who shall be the principal legal adviser to the Government of Jamaica”[11]
The Governor General, on the advice of the Prime Minister, appoints the Attorney General
Section 79(2) of the Jamaican (Constitution) Order in Council 1962 specifies that:
“Power to appoint a person to hold or act in the office of Attorney-General and to remove from that office a person holding or acting in it shall, subject to subsection (4) of this section, be exercised by the Governor-General acting in accordance with the advice of the Prime Minister”[12]
D. KENYA
The Director of Public Prosecutions is in charge of criminal prosecutions
Article 157(6) of the Constitution of Kenya 2010 provides:
“The Director of Public Prosecutions shall exercise State powers of prosecution and may—
(a) institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;
(b) take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and
(c) subject to clauses (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).”[13] (Emphasis mine)
The President, on the nomination of the President and the approval of the National Assembly, appoints the Director of Public Prosecution
Article 157(2) of the Constitution of Kenya 2010 states:
“The Director of Public Prosecutions shall be nominated and, with the approval of the National Assembly, appointed by the President”[14] (Emphasis mine)
This acts as a check and balance mechanism.
The Director of Public Prosecutions can only withdraw prosecutions with the permission of the Court
Article 157(8) of the Constitution of Kenya 2010 mentions the following:
“The Director of Public Prosecutions may not discontinue a prosecution without the permission of the court.”[15] (Emphasis mine)
This acts as a check and balance mechanism.
The Attorney General is the principal legal advisor to the Government
Article 156(4) of the Constitution of Kenya 2010 specifies that:
“The Attorney-General—
(a) is the principal legal adviser to the Government;
(b) shall represent the national government in court or in any other legal proceedings to which the national government is a party, other than criminal proceedings; and
(c) shall perform any other functions conferred on the office by an Act of Parliament or by the President.”[16]
The President, on the nomination of the President and the approval of the National Assembly, appoints the Attorney General
Article 156(2) of the Constitution of Kenya 2010 provides:
“The Attorney-General shall be nominated by the President and, with the approval of the National Assembly, appointed by the President.”[17]
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by Joshua Wu Kai-Ming | Dec 15, 2021 | Law
1. Bangladesh
Article 70 of the Constitution of the People’s Republic of Bangladesh:[1]
“A person elected as a member of Parliament at an election at which he was nominated as a candidate by a political party shall vacate his seat if he –
(a) resigns from that party ; or
(b) votes in Parliament against that party ;
but shall not thereby be disqualified for subsequent election as a member of Parliament.”
2. Belize
Article 59(2)(e) of the Belize Constitution Act:[2]
“A member of the House of Representatives shall also vacate his seat in the House
…
(e) if, having been a candidate of a political party and elected to the House of Representatives as a candidate of that political party, he resigns from that political party or crosses the floor.”
3. Fiji
Article 63(1) of the Constitution of the Republic of Fiji:[3]
“The seat of a member of Parliament becomes vacant if the member—
…
(g) resigns from the political party for which he or she was a candidate at the time he or she was elected to Parliament;
(h) votes or abstains from voting in Parliament contrary to any direction issued by the political party for which he or she was a candidate at the time he or she was elected to Parliament, without obtaining the prior permission of the political party; or
(i) is expelled from the political party for which he or she was a candidate at the time he or she was elected to Parliament and—
(i) the expulsion was in accordance with the rules of the political party relating to party discipline; and
(ii) the expulsion did not relate to any action taken by the member in his or her capacity as a member of a committee of Parliament.”
4. India
Item 2 in the Tenth Schedule to the Constitution of India:[4]
“… a member of a House belonging to any political party shall be disqualified for being a member of the House—
(a) if he has voluntarily given up his membership of such political party; or
(b) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention.”
5. Malawi
Article 65(1) of Malawi’s Constitution:[5]
“The Speaker shall declare vacant the seat of any member of the National Assembly who was, at the time of his or her election, a member of one political party represented in the National Assembly, other than by that member alone but who has voluntarily ceased to be a member of that party or has joined another political party represented in the National Assembly, or association or organization whose objectives or activities are political in nature.”
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by Joshua Wu Kai-Ming | Nov 3, 2021 | Law
1. Applies in favour of the constitutionality of an Act of Parliament/State enactment
In Public Prosecutor v Su Liang Yu [1976] 2 MLJ 128, Hashim Yeop A Sani J (later Chief Justice of Malaya) held:
“There is always a presumption in favour of constitutionality of an enactment and the burden is upon him who attacks the enactment to show that there has been a clear transgression of the constitutional principles.”[1]
2. Applies to all Acts of Parliament
The Federal Court in Rovin Joty a/l Kodeswaran v Lembaga Pencegahan Jenayah & Ors and other appeals [2021] MLJU 195 remarked that:
“There is a presumption of constitutionality in every legislation passed by Parliament.”[2]
3. Is premised on the understanding that Parliament is deemed better placed than the Courts to determine social policy as parliamentarians are democratically elected and represent the will of the people
Azahar Mohamed CJ (Malaya), in delivery the majority decision in Letitia Bosman v Public Prosecutor and other appeals (No 1) [2020] 5 MLJ 277 held:
“The presumption of constitutionality exists because Parliament is deemed better placed than the Courts to determine social policy. Parliamentarians are democratically elected and represent the will of the people.”[3]
4. A manifestation of judicial deference in the exercise of constitutionally derived powers
In Rovin Joty a/l Kodeswaran v Lembaga Pencegahan Jenayah & Ors and other appeals [2021] MLJU 195, Zabariah Mohd Yusof FCJ opined the following:
“The presumption of constitutionality is a manifestation of judicial deference in striking down laws passed by Parliament or to impugn executive action insofar as the exercise of constitutionally derived powers are concerned.”[4]
5. Cannot be carried to the extent or stretched to for the purposes of validating an invalid law
Eusoffe Abdoolcaader J (later SCJ) held in Public Prosecutor v Datuk Harun bin Haji Idris & Ors [1976] 2 MLJ 116 (“Datuk Harun”):
“… the presumption is not however to be carried to the extent or stretched for the purpose of validating an otherwise invalid law, and if the force ofArticle 8(1) bears sufficiently strongly upon and against that presumption, it must then necessarily bend, break and give way under that force.”[5]
The Federal Court in Letitia Bosman v Public Prosecutor and other appeals (No 1) [2020] 5 MLJ 277 shared a similar view when it held:
“… that is not to say that the presumption is unassailable. The presumption of constitutionality cannot be applied to render a law that is invalid, valid.”[6]
6. Burden to disprove the presumption lies on the party presenting the challenge
This is the trite position as seen in Datuk Harun:
“there is a presumption – perhaps even a strong presumption – of the constitutional validity of the impugned section with the burden of proof on whoever alleges otherwise.”
The above extract in Datuk Harun was referred to favourably by the Supreme Court in Public Prosecutor v Pung Chen Choon [1994] 1 MLJ 566.[7]
Both Datuk Harun and Pung Chen Choon were relied on by the Federal Court in Rovin Joty a/l Kodeeswaran v Lembaga Pencegahan Jenayah & Ors and other appeals [2021] MLJU 195 on this point.[8] (more…)
by Joshua Wu Kai-Ming | Aug 3, 2021 | Law
In Teh Cheng Poh v Public Prosecutor [1979] 1 MLJ 50 (“Teh Cheng Poh”), the Privy Council held the following:
“The power to revoke, however, like the power to issue a proclamation of emergency, vests in the Yang di-Pertuan Agong, and the Constitution does not require it to be exercised by any formal instrument.”[1] (emphasis mine)
Strictly speaking, the Privy Council is correct in pointing out that the Federal Constitution does not prescribe the use of any formal instrument for the revocation of a proclamation of emergency.
Similarly, the Federal Constitution does not prescribe the use of any formal instrument for the revocation of any ordinance promulgated pursuant to such a proclamation.
This would be in contrast to the annulment of a proclamation of emergency (and ordinance promulgated pursuant to such a proclamation) by Parliament.
Article 150(3) of the Federal Constitution prescribes resolutions passed by Parliament as the formal instrument to be used, in relation to annulments:
“A Proclamation of Emergency and any ordinance promulgated under Clause (2B) shall be laid before both Houses of Parliament and, if not sooner revoked, shall cease to have effect if resolutions are passed by both Houses annulling such Proclamation or ordinance, but without prejudice to anything previously done by virtue thereof or to the power of the Yang di-Pertuan Agong to issue a new Proclamation under Clause (1) or promulgate any ordinance under Clause (2B).” (emphasis mine)
In the absence of a prescription in the Federal Constitution on the method of revoking a proclamation of emergency and/or the ordinances promulgated pursuant to such a proclamation, the relevant provision(s) in the Interpretation Acts 1948 and 1967 (if any) would be applicable.
The Malaysian superior courts have consistently recognised that the provisions of the Interpretation Acts 1948 and 1967 apply even to the Federal Constitution, by virtue of Sections 3 and 66 of the Act.[2]
The Ordinances
According to Article 150(2C) of the Federal Constitution, an ordinance promulgated under Article 150(2B) has the same force and effect as an Act of Parliament.
Interestingly, the Interpretation Acts 1948 and 1967 are silent on whether Acts of Parliament have to be published in the Gazette.
Section 18(1)(a) of the Interpretation Acts 1948 and 1967 merely groups Acts of Parliament and ordinances promulgated by the Yang di-Pertuan Agong in a specific part of the Gazette:
“(1) The Gazette shall be published in parts as follows:
(a) a part to be known as the Acts Supplement which shall be published as and when necessary and which shall contain all Acts of Parliament and all Ordinances promulgated by the Yang di-Pertuan Agong;” (emphasis mine)
However, ordinarily, a Bill that has been passed by both Houses of Parliament and received the royal assent will become law. However, it will not have effect until it has been published in the Gazette.[3]
Since an emergency ordinance has the same force and effect as an Act of Parliament, it would be reasonable to infer that the revocation of an emergency ordinance also requires publication in the Gazette before it has any effect.
The Proclamation
The Federal Constitution, unlike in the case of emergency ordinances, does not state whether a proclamation of emergency has the same force and effect as an Act of Parliament.
In the event a proclamation of emergency is a primary legislation, the manner of revoking it would be similar to that of emergency ordinances and likely require publication in the Gazette.
In the event a proclamation of emergency is a delegated/subsidiary legislation, rather than primary legislation, Sections 86 and 18(1)(b) of the Interpretation Acts 1948 and 1967 would be relevant.
Section 86(1) of the Interpretation Acts 1948 and 1967 provides that:
“Subsidiary legislation made under any Act of Parliament, Ordinance, Enactment or other lawful authority shall, unless it be otherwise expressly provided in any Act of Parliament, Ordinance, be published in the Gazette and, unless it be otherwise provided in such subsidiary legislation, shall take effect and come into operation as law on the date of such publication.” (emphasis mine)
Additionally, Sections 18(1)(b) of the Interpretation Acts 1948 and 1967 groups Royal Proclamations together with delegated/subsidiary legislation in the Gazette:
“(1) The Gazette shall be published in parts as follows:
…
(b) a part to be known as the Legislative Supplement A which shall be published as and when necessary and which shall contain all Royal Proclamations, orders, rules, regulations and by-laws;” (emphasis mine)
In light of Sections 86 and 18(1)(b) of the Interpretation Acts 1948 and 1967, it can be argued that, as a general rule, a revocation order in relation to a proclamation of emergency has to be published in the Gazette.
Regrettably, the Privy Council’s decision in Teh Cheng Poh lacks any discussion on the possible application of Sections 86 and 18(1)(b) of the Interpretation Acts 1948 and 1967 even though both provisions were in force at the time the case was before the Privy Council.
Hence, the Privy Council’s observations vis-a-vis the formal method (or lack thereof) for the revocation of a proclamation of emergency should be treated with caution in light of the possible applications of Sections 86 and 18(1)(b) of the Interpretation Acts 1948 and 1967.
(more…)
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