Speaking to FMT on the issue of whether the decision by AG Apandi Ali to clear Prime Minister Najib Razak of all wrongdoing in the RM2.6 billion “donation” case could be challenged, Ramkarpal Singh, DAP MP for Bukit Gelugor said the real question was whether Article 145(3) of the Federal Constitution conferred unfettered discretion on the Attorney-General to institute criminal proceedings.
“While there has been no precedent of anyone challenging an AG’s decision not to prosecute, this does not mean it cannot be done.
“Article 145(3) does not employ the word ‘absolute’, as such, it cannot be said that the AG has absolute power to not institute criminal proceedings.”
He explained the decision to prosecute would depend on the facts and circumstances of a given case and that if there was clear evidence of an offence being committed and if the AG did not prosecute, then the courts had a supervisory role to ensure that the rule of law was upheld.
This, Ramkarpal said, could be done by a judicial review of the AG’s decision not to prosecute and in his view, the courts may compel the AG to prosecute.
Ramkarpal said that if the Malaysian Anti-Corruption Commission (MACC) was of the opinion, from its investigations, that there was sufficient evidence contrary to the AG’s view, then it was the MACC who was obliviously aggrieved by the AG’s decision not to prosecute.
“As such it would be best for the MACC to institute judicial review proceedings against the AG for an order to compel him to prosecute.”
He said Minister in the Prime Minister’s Department Azalina Othman’s view that the AG’s decision could not be challenged was too simplistic and that the courts should decide if the AG acted unreasonably in making his decision if it was challenged.
Similarly, Professor Gurdial Singh Nijar, who is Law Faculty Professor at University of Malaya said the AG’s decision was not beyond scrutiny as the power to institute any proceedings for an offence at his discretion, was not absolute.
Gurdial told FMT that court decisions make clear that the discretion to prosecute cannot be exercised for an improper purpose and unreasonably or on the basis of an irrelevant or wrong consideration.
“If it is so exercised then it could be subject to challenge through the courts.”
On Wednesday, Azalina said Apandi’s decision could not be challenged, citing Article 145(3) of the Federal Constitution which provided the AG with the power to initiate, conduct and stop any proceeding for any offence except those under the Syariah, Native and Military Courts.