KOTA KINABALU: Havoc will erupt in the Malaysian legal system if criminal law is enforced through civil proceedings.
Under the Constitution, the discretion vested in the Attorney-General is unfettered and cannot be challenged and substituted by the courts.
Justice Sulong Matjarie of the Sabah High Court made these points yesterday in dismissing an application for leave for a judicial review in a shooting case in which a 20-year-old youth was killed.
The killing of Anthony Chang Kim Fook outside the Donggongon library in Penampang near here at about 4am on Oct 23 last year led to the arrest of a former state minister, his three sons and seven others who are currently out on police bail.
David Chang Tai Kim had filed the application and named the Penampang OCPD, Sabah Commissioner of Police and the Attorney-General as respondents.
David sought leave from the court to apply for a judicial review of the decision to release on bail the main suspect or suspects in Anthonys murder and an order to enforce the law against them.
In dismissing his application with costs, Justice Sulong said David was asking the court to do what the highest court of the country has ruled as cannot and must not be done.
The jurisdiction of a criminal court is fixed and certain. The standard of proof in a criminal case is different from that required in a civil case, he said.
Moreover, the Attorney-General is the guardian of public interest and as Public Prosecutor, he, not the court, is in control of all prosecutions. How can a prosecution of this nature be done behind his back?
He also agreed with Senior Federal Counsel Datuk Mary Lim's contention that if the Attorney-General failed in his duty, the matter could be raised in Parliament or elsewhere.
Justice Sulong said although he sympathised with David and his family over Anthonys death, I have to accept that it is not for me to make the law.
I am bound by the decisions made by the courts superior to this court. My duty is to state the law as I believe it should be, he said.
David and his wife Khoo Ah Chee appeared teary-eyed when their lawyers V.K. Liew and Christina Liew translated the decision into Hakka.
I just want justice for Anthony, said David.