M.Krishnamoorthy
A media coach, adjunct professor and author
The Attorney General’s Chambers (AGC) objection to former finance minister Tun Daim Zainuddin’s application for leave to seek a judicial review of the Malaysian Anti-Corruption Commission’s (MACC) investigations may compromise with the Rule of Law.
Former Appeal Court Judge Datuk Hamid Sultan Abu Backer said, “Absolute prosecutorial discretion is a curse (anathema) to the criminal justice system. A literal interpretation of the Attorney-General’s constitutional powers as Free MalaysiaPublic Prosecutor is not permissible as it compromises the rule of law.”
Judge Hamid Sultan said this in his commentary on absolute prosecutorial discretion published in Free Malaysia Today on 14th October 2023.
“To my mind, the most uncivilised provision in the Federal Constitution in respect of our criminal justice system is without a doubt Article 145(3), which gives the Attorney-General (AG) his prosecutorial powers.”
That provision gives the AG power, “exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence”, except for matters involving the shariah courts, native courts or court-martials.
Those powers, however, do not extend to the persecution of an accused. Based on established principles, it is the AG’s paramount duty when acting as Public Prosecutor to ensure an accused is not only given a fair trial, but that procedural fairness is extended at all stages of the process, including at the apex court.
Senior federal counsel Liew Horng Bin said: “If they (Daim and his family) want to file for judicial review, it could be done after a charge or charges have been made to the criminal court, but not before when there is an ongoing investigation and no decision has been made either to charge or not to charge the individual.”
He said this in response to Daim and his family’s application for judicial review into the financial affairs and the 66 notices issued to freeze or seize their assets based on MACC's investigations.
“There is no statutory limitation for the investigating authorities to investigate a purported crime,” senior federal counsel Liew Horng Bin told the High Court, adding that if such a judicial review were allowed, it would open the floodgates to halt other ongoing investigations.
The AGC representative cited the case of Latheefa Bibi Koya vs the MACC as a case in point and asked the High Court to abide by the principle of stare decisis (to stand by things decided). In Latheefa's case, the applicant had similarly sought to stop the MACC's investigations, but the courts — from the High Court right up to the Federal Court — did not agree to this.
Hamid Sultan added that another coercive provision which adds meat to the AG’s constitutional power is Section 376(1) of the Criminal Procedure Code (CPC), which reads: “(1) The Attorney General shall be the Public Prosecutor and shall have the control and direction of all criminal prosecutions and proceedings under this Code.”
“In my opinion, this provision destroys the element of accountability to the rule of law in our criminal justice system. Both provisions need to be amended at the earliest opportunity to give the judiciary the power of judicial review. In saying so, I am not suggesting that the judiciary does not already have the power to check for any abuse of prosecutorial powers. However, I believe the apex court has yet to play its constitutional role according to the rule of law.
Article 145(3) and Section 376(1) are also in breach of many United Nations conventions and prosecutorial norms practised both in the UK and India, according to Hamid Sultan.
“Our judiciary, which often takes solace by importing decisions from both countries to give clout and a sense of fairness to its decision-making process, has not dealt with it yet according to its oath of office obligations.
“Neither has it acted according to our constitutional framework, which requires the courts not to be subservient to the laws of Parliament but to protect the public interest and not allow any arbitrary exercise of power against any individual.
“In interpreting Article 145(3), the Federal Court, in the case of Long bin Samat & Ors (1974), gave brutal force to the concept of absolute power. It could have, by judicial interpretation, mellowed it down to what was advocated by former Lord President Raja Azlan Shah in the well-known case Pengarah Tanah v Sri Lempah (1978), where it was observed that the term “unfettered discretion” is a contradiction in terms and that every legal power must have legal limits, failing which a dictatorship would arise.
“When powers are wrongly exercised, it becomes the duty of the court to intervene.
A literal reading of the Article gives the AG absolute power to institute, conduct or discontinue any proceedings for an offence.
“Such a literal reading, although supported by judicial decisions of the past and forming the precedent followed to date, is, in my view, anathema to our criminal justice system itself. No literal interpretation of a constitutional provision is permissible if it compromises the rule of law and undermines the oath of office of judges and past judicial decisions the rulers who are supposed to arrest any form of arbitrary decision of the executive or its agencies.”
Recalling his early days in criminal practice, “I have found the decision in Long bin Samat to be uninspiring. I also witnessed prosecutorial abuse during “Operation Lalang” when many politicians of statesman calibre were detained under the now-repealed Internal Security Act 1960.
“Unfortunately, in breach of their oath of office, judges were prepared to lend their hands to the executive, leading to a slow destruction of the administration of criminal justice in selected cases. The Executive, with the support of the AG, whose role is supposed to be independent, had even convinced the court to participate in the abuse itself based on the doctrine of parliamentary supremacy (under which the courts are subservient to Parliament) with no appreciation of the applicability of the constitutional supremacy (where the courts are subservient to the constitution) doctrine.”
That abuse continued in many cases, including those brought against Anwar Ibrahim and the late Karpal Singh, which he addressed in a 64-page affidavit in an action brought by Karpal’s daughter, Sangeet Kaur.
Freelance Writer M. Krishnamoorthy (www.imkrishna.net) is a media coach, adjunct professor and undercover journalist. He has freelanced with Bernama, NST, The Star, and Malaysiakini. He also freelances as a fixer/coordinator for CNN, BBC, German and Australian Television networks and the New York Times. As an undercover journalist, he has highlighted society's concerns.
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