The Center to Combat Corruption and Cronyism (C4 Center) is concerned by the comments made by Attorney General Ahmad Terrirudin Salleh at the “Opening of Legal Year 2024” event on 15 January.
He relied upon the plain language of the law to contend that the public prosecutor has no duty to provide reasons for the exercise of his discretionary powers, including reasons for seeking the withdrawal of charges against an accused.
Over the past several years, Malaysia has witnessed high-profile instances of charges against politically connected persons being withdrawn or dropped by the prosecution, often with little to no explanation.
This includes Lim Guan Eng’s discharge not amounting to an acquittal over corruption charges after the prosecution applied for such a discharge in 2018. It also includes Musa Aman’s acquittal on 46 charges of corruption and money laundering after the prosecution applied to withdraw the charges in 2020.
The most recent high-profile example of this was the successful application for a discharge not amounting to an acquittal in Deputy PM Zahid Hamidi’s Yayasan Akalbudi trial. This application was made by the prosecution after a prima facie case was made out against Zahid and he was ordered to enter his defence on all 47 charges – meaning the prosecution had already proven through credible evidence each ingredient of the offences Zahid was charged with would warrant a conviction if unrebutted. The reasons to substantiate the application were only released following a public outcry.
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For Attorney General Terrirudin to dismiss any duty to provide reasons for his exercises of power – in his maiden speech since his appointment took effect on 6 September – is inconsistent with core principles of transparency and good governance and signals a troubling approach to the exercise of prosecutorial discretion under his leadership.
It is important to bear in mind that the attorney general (who is appointed on the binding advice of the prime minister) holds the office of the public prosecutor ‘ex officio’. In other words, a political appointee is also empowered with general discretion over the conduct, control and direction of criminal prosecutions.
Criticism of this state of affairs has been long-standing, as there is an inherent possibility that decisions regarding prosecutions of key political figures may be made upon political considerations.
C4 Center notes that the Anwar Ibrahim administration has made public commitments regarding the eventual separation of the offices, but little visible progress has been made.
Furthermore, strict adherence to the plain wording of legal provisions should not be used as an excuse for failing to account for atypical decisions.
As the Federal Court noted in the case of Sundra Rajoo Nadarajah v Menteri Luar Negeri, Malaysia, the wide discretion afforded to the attorney general-cum-public prosecutor under Article 145 of the Federal Constitution is not unfettered or absolute.
If public confidence in the integrity of national institutions is to be upheld, Terrirudin must understand that his expressed views are paternalistic and dismissive of the importance of public accountability. A lack of transparency directly results in the erosion of the people’s trust, which the attorney general must seek to avoid at all costs.
A clear example of how discretion can be exercised in a manner which upholds good governance and public interest was the decision of House of Representatives Speaker Johari Ghani to allow debate upon the Auditor General’s Report 2021 last year, despite strong opposition by members of the opposition bench.
Under Article 107 of the Federal Constitution, the auditor general’s reports are only required to be “laid before” the house. However, the Speaker’s commitment to ensure an open debate on the report illustrates how discretion is exercised in the interest of public participation and transparency despite there being no legal requirement to do so.
Terrirudin should adopt a similar understanding with regard to his role -although the law does not obligate the publication of reasons for prosecutorial decisions, this ought to be done anyway where it lies in the public interest.
Several nations (such as South Africa, the UK and Kenya) have established prosecutorial guidelines which govern the exercise of discretion by prosecutors in deciding whether to institute or discontinue prosecutions.
These guidelines may create a degree of confidence that such decisions shall be made in a fair and just manner, and that all persons shall be treated equally in the eyes of the law regardless of status.
Malaysian prosecutors do not have the same guidance and limits imposed upon them in their functions, which directly results in a lack of uniformity in the decisions made pertaining to the conduct of prosecutions.
In the absence of clear guidelines governing prosecutorial discretion, alternative measures such as the publication of reasons is imperative to secure public confidence.
The public must be assured that all persons shall receive the same treatment regardless of who they are, and if decisions are made which conflict with this fundamental principle enshrined under Article 8 of the Federal Constitution, it is incumbent upon the attorney general-cum-public prosecutor to provide sufficiently particularised reasons to justify those decisions.
Therefore, C4 Center urges for the following:
- Expedite the separation of the offices of attorney general and public prosecutor
- Pending the above process, the attorney general must commit to full transparency with regard to high-profile criminal prosecutions, particularly where the prosecution is discontinued
- In tandem with the separation of the offices of the attorney general-cum-public prosecutor, the government should draft prosecutorial guidelines to steer the conduct of prosecutors in a fair and uniform manner