Essay - Whether the power of the Public Prosecutor under Article 145(3) of the Federal Constitution is absolute.

Introduction

Pursuant to S376(1) of the Criminal Procedure Code ("CPC"), a Public Prosecutor (“PP”) in Malaysia is the same person as the Attorney General (“AG”). The said section gives PP the power to control all criminal prosecutions and proceedings under the CPC. His power is further strengthened by Art 145(3) of the Constitution, which gives the PP discretion to institute, conduct or discontinue any criminal proceedings. For decades, the judiciary has tied its own hands and declared that Art 145(3) allows the PP to act according to his discretion, without any limit. As frustrating as it is, the judiciary on many occasions, is considered to be more executive-minded than the executive themselves. Thus, until today, high-profile cases were discontinued without any sound justification or challenges. However, in the evolution of law, commendable decisions have begun to surface, which serves as a warning that in a nation with a rule of law, absolute power is not to be entertained. Hence, this essay seeks to discuss the development of laws on this matter and will come to the conclusion that the discretionary power under Art 145(3) of the Constitution is not absolute, anymore.

Source of Power for the PP to Discontinue Proceedings

Apart from Art 145(3) of the Constitution, the power of PP to discontinue any proceedings is also derived from S254 of the CPC. As illustrated in Poh Cho Ching v PP, this power, which is also known as nolle prosequi, can be exercised at any stage of the trial before judgment is given. In PP v Zainuddin, the court affirmed this discretion by deciding that the court has no say in the prosecution’s decision to close or end its case.

What are the Problems?

The result from PP discontinuing any proceeding will either cause the accused to be acquitted or discharged not amounting to acquittal. The former will not entitle the prosecution to re-charge him for the same matter while in the latter situation, the accused may be charged again. It is opined that courts prefer to acquit an accused as opposed to merely discharging him without acquitting him. In Au She Chun and PP v Lau Ngiik Yin, the rationale for ordering an acquittal is due to the prosecution is no longer interested to pursue such matter and to avoid the charges from hanging over the head of the accused indefinitely.

However, when it comes to high-profile cases, it is rather difficult to convince the people that justice has been served or seen as served if the court ordered a full acquittal when the prosecution applied for discontinuance of proceedings. We can observe from recent decisions where the courts had ordered the full acquittal of Musa Aman and Lim Guan Eng, respectively, in corruption charges. What stirred the public opinion on this matter was the fact that the prosecution will not institute a proceeding in the first place if there was no sufficient evidence. Thus, why is it when the cases came before the court, in the middle of the proceedings, the PP now changes his mind and decided to discontinue the cases on the ground that there was not enough evidence? The public perceived the criminal justice system as to be ineffective when high-profile people can be acquitted easily.

At this juncture, it must be noted that no one is questioning the power of PP to discontinue any proceedings, but the question is, is there any control to this power? To rephrase, when PP decides to discontinue any proceeding, can one challenge such a decision in courts? On the surface, it does seem like there is no control to it. The long line of authorities supported this proposition.

The Traditional line of Authorities

The Federal Court in Long bin Samat v PP sets the position, which has been religiously applied and followed by our courts after so many years, that a PP can exercise his discretion under Art 145(3) as he pleases, and such exercise of power is not justiciable. The court strongly held that anyone who is dissatisfied with the AG’s decision under Art 145(3) should seek his remedy elsewhere, but not in the courts. Yet, it begs the question, should not the judiciary becomes the defender of the people’s rights? If the court is powerless to defend the law, where else can the people turn to?

The Federal Court again, in Johnson Tan Han Seng v PP, affirmed that an AG has the liberty to decide as he thinks fit, to the extent that he is allowed to discriminate against the people. This is as such that Art 145(3) is not subjected to Art 8, which guarantees equality before the law and freedom from discrimination by any public authority. Rather, it is Art 8 that is subjected to Art 145(3).

In Karpal Singh v PP, the Supreme Court decided that the discretion of AG under Art 145(3) is unfettered, cannot be challenged or substituted by the court’s.

There are 2 rationales to the approach taken by the courts in this matter. First, as decided by the Supreme Court in PP v Zainuddin, AG’s decision under Art 145(3) is not open to judicial review because it is expected that the AG will exercise discretion honestly. Further, the High Court in Datuk Hj Wasli Mohd Said v PP observed that there is the legal presumption that all prosecutions instituted by the PP under Art 145(3) are done with good faith. Thus, unless there are very strong and compelling reasons to say otherwise, the court will not simply question such exercise of power. But again, there was never the opportunity available to question such discretion. The court turned its face away from litigants who tried to challenge the discretion exercised by the PP. It is also not right to naively presume good faith on the PP since the fusion of the power of PP and AG makes people believe that there is political influence in the exercise of discretion by PP under Art 145(3).

Secondly, the High Court in Repco Holdings Bhd v PP, in the words of Gopal Sri Ram, the then JCA, held that the proposition that the discretionary power of the PP under Art 145(3) is not open to judicial review is not only a proposition that is good in law, but in policy too. It avoids the AG from being called upon to a court of law to reason for his decision for every time he exercises his discretion under Art 145(3). However, it shall be noted, a proposition, even though good in law or policy, is never cast in stone. It can go through necessary changes when time and circumstances demand so.

Subtle Hints Among the Traditional Lines of Authorities

In Teh Cheng Poh v PP, it was opined that there is a tacit acknowledgment that although the AG is vested with prosecutorial authority by the supreme law of the land, such discretion must be exercised for its proper constitutional purpose and not for the unlawful objective. The court further stated that if the AG, as the custodian of prosecutorial power, exercised his discretion wrongfully, then such exercise of power is justiciable. 

In PP v Lau Ngiik Yin, the High Court, being bound by the doctrine of stare decisis, subtly observed that it is incorrect to say that the powers of PP cannot be questioned by courts. Or else, it will impinge on the role of the court as the protector of the Constitution. However, the courts will rarely intervene in the decision-making process of the PP to maintain law and order, unless public interest compels the court to do so.

Current position: Rays of Lights through Creative Decisions

Judicial review towards the exercise of discretion of PP has usually been rejected by courts, who subscribed firmly to the principle decided in Long bin Samat v PP. However, in Rosli bin Dahlan v Tan Sri Abdul Gani bin Patail and Dato Pahlawan Ramli bin Yusuff v Tan Sri Abdul Gani bin Patail, both decided by the same judge, changed the old position drastically. Very creatively, the judge held that absolute prosecutorial discretion under Art 145(3) has never been expressly interpreted as to grant upon PP absolute prosecutorial immunity. It means that if such discretion was exercised with malice, improper purpose, or abuse, then PP is liable to civil action. This is on a simple principle that unfettered exercise of power by the public officials was not consonant with the rule of law.

In a more recent decision decided by the Apex court of the land, the Court of Appeal in Sundra Rajoo a/l Nadarajah v Attorney General also deviates itself from the usual path of decisions and decided that the appellant is entitled to a judicial review as against the discretion of AG under Art 145(3). It shall be noted that this decision is pending appeal before the Federal Court. The decision which the Federal Court will reach will either finally uphold the rule of law or bring us back to the sad affair with the traditional view on this matter.

Conclusion

It is rather unfortunate for our judiciary to continuously protect the executive, even with many doubtful instances of discontinuance of cases in recent years. Our neighboring country, Singapore, has long put a stop to the absolute discretion of its AG in prosecutorial discretion by ruling that such discretion is not unfettered. In Law Society of Singapore v Tan Guan Hua Neo Phyliss, the court decided that it will always lend its hand to intervene and redress any wrong if it appears that such prosecutorial discretion is abused. Two points to be noted from that decision are first, the constitutional powers of the AG in Singapore and Malaysia are in pari materia and second, the Singapore Court of Appeal came to its decision by relying upon the decision made by HRH Raja Azlan Shah in Sri Lempah Enterprise Sdn Bhd to decide that the notion of unfettered discretion is contrary to the rule of law. Fortunately, the spirit of Sri Lempah is upheld in Dato Pahlawan’s case where the judge emphasized that the notion of absolute immunity for PP, who are public officers, is contrary to the rule of law. Thus, the current position opens the door for people to question the discretion exercised by PP under Art 145(3).

Notes: I wrote this for my CPC examination. Our group assignment concerned with a similar topic but we did some mistakes in it. So, I was hoping that this answer would redeem myself from the mistakes in our group assignment. Feel free to correct me if there's any wrong. :)

Disclaimer: This post is purely academic.