Attorney General acts independently


I REFER to the report “Hanafiah questions how graft cases circular was leaked” (The Star, Feb 11).

The Attorney General (AG) is the principal adviser to the government of Malaysia on matters of law and legal opinion. His role and responsibilities is 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, and to discharge the functions conferred on him by the Constitution or any other written law.

Section 376(1) of the Criminal Procedure Code provides that the Public Prosecutor has the control and direction of all criminal prosecutions and proceedings under the Code. Further, the powers of the AG is explained in Article 145(3) of the Federal Constitution as follows: “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.”

The AG has a choice of the penal statutes under which to charge an accused and institute proceedings for an offence. In fact, the AG is permitted to take into account the public interest when deciding what charge or charges to prefer against an accused.

The AG can prefer to charge the accused with the lesser serious offence, such as voluntarily causing hurt contrary to Section 324 of the Penal Code instead of an offence of voluntarily causing grievous hurt contrary to Section 326 of the Penal Code, when the evidence would have justified him to proceed under Section 326.

In Long bin Samat & Ors v. Public Prosecutor (1974), the Federal Court, in interpreting Clause (3) of Article 145, stated: “In our view, this clause from the supreme law clearly gives the Attorney General very wide discretion over the control and direction of all criminal prosecutions. Not only may he institute and conduct any proceedings for an offence, he may also discontinue criminal proceedings that he has instituted, and the courts cannot compel him to institute any criminal proceedings which he does not wish to institute or to go on with any criminal proceedings which he has decided to discontinue. Still less then would the court have power to compel him to enhance a charge when he is content to go on with a charge of a less serious nature.”

In Public Prosecutor v Zainuddin & Anor (1986), Salleh Abas LP stated: “The law and Constitution in giving the Attorney General an exclusive power respecting direction and control over criminal matters expect him to exercise it honestly and professionally. The law gives him a complete trust in that the exercise of this power is his and his alone and that his decision is not open to any judicial review. If he is a Minister of the Government, he is answerable to Parliament and to his Cabinet colleagues, and if he is not, the government will answer for him in Parliament, whilst he himself will be answerable to the government, and if he is a civil servant he will be answerable also to the Judicial and Legal Service Commission, though anomalously he is a member of it. Members of the public expect that he exercises his power bona fide and professionally in that when he prefers a charge against an individual, he does so because public interest demands that prosecution should be initiated and when he refrains from charging an individual or discontinues a prosecution already initiated, he also acts upon the dictate of public interest.”

As Article 145(3) of the Federal Constitution conferred on the AG the exclusive authority to conduct prosecutions, it must follow that no other authority, whether government or otherwise, may dictate or direct on the exercise of that function.

It must be added that where crime has been committed, the police would conduct the investigation in accordance with the procedures laid down in the Criminal Procedure Code. Upon completing the investigation, the investigation report will then be submitted to the Attorney General’s Chambers, which will then determine whether the evidence are overwhelming to institute and conduct criminal proceedings and prosecutions.

In short, in criminal matters, the AG acts independently and does not receive or take direction and instruction from the government.

ASHGAR ALI ALI MOHAMED

Ahmad Ibrahim Kulliyyah of Laws

International Islamic University Malaysia

Letters , Law , Attorney General