LETTER | The future of the discretion to institute, conduct, discontinue criminal proceedings

LETTER | I refer to Muhd Shafee Abdullah’s lengthy comments on Riza Aziz’s controversial discharge not amounting to an acquittal (DNAA).

At the tail end of his comments, Shafee sets out to state: “The law on prosecutorial discretions of the AG/PP is clear. The latest Federal Court judgment in Chin Chee Kow (2019) has cleared the air, namely, [among others, that] the AG/PP has the sole discretion on matters of prosecution and withdrawal of charges, but his discretionary decision is not unfettered. In suitable cases, the court can review the decision if the decision is flawed by illegality, irrationality or procedural impropriety or arrived at in bad faith.”

Allow me to clear the air on Chin Chee Kow which is reported as Peguam Negara Malaysia v Chin Chee Kow [2019] 3 MLJ 443. There were two appeals in that case but the central issue was one, namely whether the decision of the attorney-general to grant or refuse his consent under section 9 of the Government Proceedings Act 1956 in respect of civil cases is non-justifiable or non-reviewable by the courts.

So clearly, Chin Chee Kow dealt with the decision of the AG in respect of civil cases. It was not the discretion of the AG in relation to criminal proceedings.

Notwithstanding that, the Federal Court took occasion to state: “It cannot be disputed that the AG has unfettered discretion in relation to the prosecution of criminal offence based on art 145 of the Federal Constitution.”

Interestingly, it was Gopal Sri Ram (then a judge of the Court of Appeal), sitting as a High Court judge exercising...