Attorney General, The Superman of Malaysia?
By Lai Chee Hoe
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.
