A JOURNALIST asked me on Sunday if there is any likelihood of criminal proceedings against certain individuals being discontinued following the appointment of Tan Sri Muhyiddin Yassin as Malaysia’s eighth prime minister.
I told him that it is highly unlikely, but not impossible.
Some of these proceedings have reached the advanced stage (nearing the prima facie stage), while others will soon reach that same stage. Many witnesses had been called and had testified. It would be a waste of court time if they are discontinued.
Although the attorney-general (as the public prosecutor) has absolute discretion under Article 145(3) of the Federal Constitution to discontinue or withdraw any criminal proceedings (except for cases before the syariah courts, native courts and military courts), it is usually exercised at the early stage of a criminal proceeding.
A withdrawal or discontinuance at a late stage will give rise to negative speculation by the public and foreign media.
True, at this point of time, we do not have an attorney-general, after Tan Sri Tommy Thomas resigned, but the new A-G is expected to do what is right and according to the Constitution.
The public prosecutor’s discretion to discontinue criminal proceedings is beyond doubt. For instance, in two cases — Long Samat vs Public Prosecutor (1974), Tun Mohamed Suffian said the courts cannot compel the public prosecutor to institute criminal proceedings which he does not wish to institute, or to go on with criminal proceedings which he has decided to discontinue. In 1986, Public Prosecutor vs Zainuddin, Tun Salleh Abas stated that the public prosecutor’s discretionary decision “is not open to judicial review”.
Last February, Tommy used his discretion to discontinue criminal proceedings against 12 individuals accused of supporting LTTE (Liberation Tigers of Tamil Eelam). In his 11-page media statement, he said he decided to discontinue the proceedings because “there was no realistic prospect of conviction” for any of the accused.
In February 2016, then attorney-general Tan Sri Mohamed Apandi Ali discontinued proceedings under the Sedition Act against Universiti Malaya law lecturer Dr Azmi Sharom.
A month earlier, on Jan 26, 2016, Apandi decided not to charge then prime minister Datuk Seri Najib Razak at the end of a Malaysian Anti-Corruption Commission (MACC) investigation in respect of a RM2.6 billion political donation and the RM42 million from SRC International transferred into his personal bank account.
He said his decision was “based on the facts and evidence as a whole, I, as the public prosecutor, am satisfied that no criminal offence has been committed by the prime minister in relation to the three investigation papers”.
Subsequently, the Bar Council filed a judicial review seeking orders from the High Court to set aside Apandi’s decision exonerating Najib. It also sought court orders to allow MACC to continue investigating Najib.
Then Malaysian Bar president Steven Thiru said the A-G’s discretionary prosecutorial powers “should be determined by the courts”. Clearly, this statement is contrary to what Salleh had said in 1986 (as mentioned above).
Given the current legal position that the A-G’s prosecutorial powers are not subject to review and his discretion to proceed, not to proceed, to commence or to withdraw any criminal proceedings cannot be questioned by anybody, should not there be a mechanism that prevents absolute discretionary power?
Now may be an opportune time for Article 145 to be reviewed and the office of the A-G (public prosecutor) be made answerable to Parliament.
I am told that in England and Wales, Canada and Australia, the office of the attorney-general and the director of public prosecutions (DPP) are separate and both are answerable to Parliament.
The writer is a former federal counsel at the Attorney-General’s Chambers, and is deputy chairman of the Kuala Lumpur Foundation to Criminalise War
The views expressed in this article are the author’s own and do not necessarily reflect those of the New Straits Times