Considering the implications of the Attorney General’s wide discretionary powers and why even the humblest citizenry ought to be more vigilant towards any abuse of those powers.

Recently, a few of my clients who needed criminal law advice asked me a similar question.

Question: “If there is no clear evidence, why are the police still pressing charges?”

This question is conceptually incorrect as you may already know that the police has no authority to determine whether to press charges or otherwise. Telling them the police has no power to do so, does not really clear their doubts and I took the opportunity to explain to my clients that only the Attorney General (AG) can decide who, when and where to prosecute.

My client responded, “In that case, isn’t he the superman of Malaysia?”

Answer: “Well, that is quite subjective but if someone were to look into the context of the Federal Constitution, the answer is yes.”

So who is this AG and why is his office so powerful?

The AG is an individual appointed by the government of the day to carry out legal affairs of the government. His main responsibilities are:
(a) Chief legal adviser to the Government;
(b) Guardian of the rule of law; and
(c) Superintendence of the prosecuting departments.

Article 145 of the Federal Constitution provides amongst others:

– It shall be the duty of the Attorney General to advise the Yang di-Pertuan Agong or the Cabinet or any Minister 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 Yang di-Pertuan Agong or the Cabinet, and to discharge the functions conferred on him by or under this Constitution or any other written law.

– 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.

There is an existing argument that the AG should be made accountable to Parliament and his office be granted access to the members of parliament from the opposition which I do not wish to dwell into at this moment.

What I wish to elaborate is the extensive powers of the AG affecting the lay man on the street.

To have a better understanding of Article 145(3) of the Federal Constitution, I have dissected this section into 3 parts: institute, conduct and discontinue.

Power to institute

The word “institute” in this context has been judicially examined in PP v Lim Shui Wang & Ors [1979] 1 MLJ 65 where Suffian Lord President observed that “the word institute” means “to set on foot, initiate, start,” and in Public Prosecutor v Datuk Harun Bin Haji Idris [1976] MLJ 116, the judge refers it to the “commencement of proceedings and prosecutions.”

For a lay person like you and me, it simply means that the AG has a discretionary power to decide whether to charge a person or otherwise. Conversely, the police do not have the power to determine whether to charge but were only limited to investigating duties.

In practice, it is then translated to this – after a complainant made a police report, his/her matter will be referred to an investigating officer (IO). An investigating paper (IP) will be opened and upon completing investigation, the IP will then be sent to the office of the AG. The Deputy Public Prosecutor who were delegated certain powers of the AG, upon examining the IP will decide whether to charge or otherwise.

To illustrate the discretionary power to institute proceedings, it is interesting to contrast the 2 high profile cases of Dato’ Seri Anwar Ibrahim and Datuk Seri Dr. Chua Soi Lek. Notwithstanding that both of them have police report made against them for committing carnal intercourse against the order of nature, one is facing a charge in the High Court while the other is claiming the throne of MCA.

Both are investigated under a similar section under the Penal Code which states:

Any person who has sexual connection with another person by the introduction of the penis into the anus or mouth of the other person is said to commit carnal intercourse against the order of nature.

But both of them obviously do not share similar fate.

Power to conduct

Power to conduct may not be as controversial as the former but remains important as it gives the AG’s office the exclusive right to prosecute and conduct proceedings. The consequence of this ruling is to deprive the prosecuting officers of other government agencies to conduct prosecutions unless authorised in writing by the AG’s office.

Power to discontinue

The most obvious manifestation of this aspect of the AG’s powers would be the outright withdrawal of charges in cases pending before the courts. If you could recall, the most recent one was after the High Court acquitted a political analyst of abetting the murder of a Mongolian woman, prosecutors from the AG’s office decided not to appeal against the verdict. This has attracted much criticisms from the society but as far as the law is concerned, the AG’s office has not contravene any of the laws in Malaysia on the contrary has complete powers to not appeal against the decision of the High Court Judge.

Unease over the AG Chambers is a widely share sentiment among many Malaysians. The Rakyat yearns to see more reforms are carried out to curtail its wide discretionary powers. The powers although granted by the FC should not be exercised arbitrarily. Many have suggested that the AG should be made accountable to Parliament and to also consider in establishing a position similar to that in other Commonwealth countries where the power to review evidence and conduct the prosecution of offences is held by a director of public prosecution.

No matter what the reforms are, I believe that it is the tax-payers’ funds that ultimately pay for all criminal prosecutions and hence we should take personal interest in getting to know more about the AG’s powers and be vigilant towards the abuse, like how most of us are drawn in to the powers of superman, a man of steel who would only use his super powers to save the world, and nothing else.

5 replies on “Attorney General, The Superman of Malaysia?”

  1. Well well well , wouldn't you know it ..Lai Chee Hoe….the man-whore :D go back to your pigsty hoe, you're nothing but a lil puny insect with no purpose in life only to crawl in your dirty stinking shit!

  2. You forgot one other function: to defend politicians and civil servants who are on the "right side" or "our side", instead of prosecuting them. In the case of the Perak Speaker, he was not on the right side.

  3. When u have great power, comes great responsibility. But only when the superman misuse it's power, the taxpayers have to pay it..

  4. Everybody in Malaysia thinks only the AG has the power to decide whether to prosecute an accused person or not. This belief has its origin from the judgment of Gopal Sri Ram who in Repco Holdings Bhd v PP[1997] 3 MLJ 68 interpreted Art.145(3) by saying that the Art gave the AG the sole power to institute, prosecute…The CA just simply followed Sri Ram's judgement. There is no Fed Crt decision on the interpretation of that Article.

    I think that Repco judgement is hogwash. It makes the Malaysian AG more powerful than the UK's AG. Mind you the Fed consti was drafted by Lord Reid. Just read Ian Chin J in PP v Lee Ming & Anor[1998] 4 MLJ 113 and Wahab Patail in S. Nadarajah v Samy Vellu(1998)? . Both thinks Gopal SRi Ram is just plain wrong. It doesn't make sense. That is why now Local Authorities can't prosecute people even for petty offences like stray cows and other LA offences because, defence counsels just quoted the Repco's case and renders the proceedings null and void.

    The starting point of all prosecutions is sect 128 of the CPC. It doesn't matter who initiates a criminal proceding. What matters is whether the court can take cognizance of the offence or not. Once the court takes cognizance of the offence, then the matter has to proceed to trial. A filing of a charge by the investigating authorities in court against a person is a complaint to the magistrate. It is the laying of a charge or a complaint.

    Every Police investigation once completed has to be reported to the Public Prosecutor in view of section 120. The PP by virtue of s.376 is the AG himself. All DPPs and A/PPs are legal officers appointed under the same section by the PP and not by the AG. They can only exercise the powers of the PP and not of the AG. They are answerable to the PP and not to the AG. Only the SG who also has the powers of a DPP can exercise the powers of the AG. This is by virtue of sect.111 of the Interpretation Act. Malaysians can see the workings of the criminal justice system better if the post of AG and PP are held by different persons and not by one person as is the case now. In Malaysia, it is the PP who has the control and direction of all criminal prosecutions and not the AG. But the irony is this; the person who holds the post of PP is the AG himself. The AG is a political appointment and with him being the PP, it also makes the PP a political post. That is the reason you have many criminal persecutions which are politically motivated. The AG being a political animal is also the PP.

    If what Sri Ram says that by virtue of Art.145(3) only the AG has sole power to institute and conduct prosecutions, then in Malaysia there only two persons who could do so, ie the AG and SG. In Malaysia, unlike the USA, we don't have District Attorneys or Deputy AGs who could exercise the powers of the AG.

    The legal position is this; unless the law prescribes that before you could institute procedings a previous consent, sanction or written authorization of a PP is required, then there is a mandatory duty of a magistrate to take cognizance of all offence as enumerated in sect. 128 if a complaint is made to him, the exceptions being provided under sect.129. Therfore a Police officer can charge a person under section 409 of the CPC even without any directive from the PP and a magistrate has to take cognizance of the offence. But once the case goes to court the PP has complete discretion whether to proceed or to withdraw with the charge. This he could do so u/d section 254. To prevent this from happening,ie with the police charging a person and the DPP eventually withdrawing it, for administrative reasons, it is far better for the police to get a written opinion from the DPP first whether a person should be charged or not before charging a person.

    Therefore to the question, if there is no evidence why go and charge the accused. The Answer is that you can't do so. If the Police/PP proceeds to charge when there is no evidence to support the charge then he is committing an offence under section 211.

    Lastly, if what Sri Ram says in Repco is right, then you dont need sect 128, 254 and 377 of the CPC since in Malaysia by the Repco's ruling only the AG and the SG could institute, conduct and discontinue any criminal proceedings in court.

  5. It is obvious why Anwar has to be persecuted, sorry I mean prosecuted, twice – for being a threat to the PM of the day.

    Whoever is President of MCA will continue to be yesman to Umno to give it some semblance of multi-raciality.

    Despite all the racial posturing, a Malay will be treated worse than a non-Malay because of his eligibility to become PM.

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