We mustn’t miss the chance to rid unfettered prosecutorial discretion

2026-03-02 - 08:34

We have all been shocked by recent events where the attorney-general discontinued the prosecution of certain people without explaining why. In a famous case against a serving minister, the prosecution itself had established a prima facie case and the court had asked the accused to present its defence. Then, out of the blue, the AG inexplicably asked the court to stop proceedings and for the accused to be discharged. The court accordingly granted the accused a discharge not amounting to an acquittal (DNAA). Lately, the AG even decided that the case would be classified as NFA (no further action). This is highly unsettling. A prima facie case means the prosecution has already made out its case with sufficient evidence. The accused would now have to answer. To then discontinue the prosecution at this stage is beyond comprehension. People are stunned. They ask, “Can the AG do that?” Can he simply choose who to prosecute and who to let go? The sad answer is “yes”. Does this not make him the most powerful person in Malaysia? Yes. Does he need to explain his decision? No. Can’t anybody stop him or at least check his decision? No. That’s absolute power! Yes. What about the saying that “power corrupts and absolute power corrupts absolutely”? Well, that question answers itself. The law that allows the AG to have this unfettered discretion to either prosecute or not is found in the Federal Constitution. Article 145(3) of the Federal Constitution states: “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.” [emphasis added] Unfortunately, Article 145(3) has for decades, been accepted by the courts as lawfully granting the AG this potent power of unfettered prosecutorial discretion. One recent example of this easily comes to mind. In 2015, then attorney general Apandi Ali, refused to prosecute then prime minister Najib Razak for offences relating to the 1MDB scandal. The Bar Council in 2016 sought judicial review of Apandi’s decision not to prosecute Najib. The High Court refused leave to apply for judicial review. The Bar’s appeal to the Court of Appeal was dismissed. The Federal Court in June 2017 also denied the appeal. The AG’s absolute power of prosecutorial discretion was upheld. In 2018, post-GE14, a new AG acted differently. ommy Thomas prosecuted Najib for the same alleged offences. Najib was eventually convicted and now serves time in prison. It is glaring, this arbitrariness in the decision-making process of prosecution. It reflects a huge weakness in the administration of justice. It is abundantly clear that this unfettered prosecutorial discretion must be removed if we are to progress as a respected nation. The opportunity to do this is upon us now. But there’s work to do and a political mountain to climb. Much depends on the integrity of our MPs. Just last week, on Feb 23, the Constitution (Amendment) Bill (No. 2) 2026 (CAB2/26) was tabled in the Dewan Rakyat. It comes up for a second reading on Tuesday, March 3. I have read the bill and found that there are a few things deficient in it. Space constraints do not allow me to discuss all of them here. I will focus on the fact that it has missed curing the most important mischief – that of unfettered prosecutorial discretion. This bill must not be allowed to pass without amendment to rectify this. Let me explain. The bill proposes the deletion of Article 145(3) that states: “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.” [emphasis added] My heart jumped with joy at reading this. But it was quickly broken when I read further; and saw the sneaky inclusion of a new Article 145B(1) which states: “The Public Prosecutor 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.” [emphasis added] You would notice that the wording in both Articles is exactly the same except for the substitution of the words “public prosecutor” for the “attorney general”. Hence, while the bill proposes to separate the roles of the AG and the public prosecutor, it has maintained the same absolute unfettered power of prosecutorial discretion that has haunted us all. It is pouring old wine into a new bottle. It begs the question whether this is intentional drafting motivated by the deep state stubbornly clinging to the status quo or mere ignorance of the development of law. After all, the issue of unfettered prosecutorial discretion is not new. It has been debated and discussed in legal proceedings for decades. It has been developing in a long line of cases with differing opinions dating back to the1974 case of Long bin Samat v PP, where the Federal Court discussed Article 145(3). The then Lord President, Tun Suffian, quoted the words “exercisable at his discretion” in the Article and opined that the wording “gives the AG very wide discretion over the control and direction of all criminal prosecutions ... and the courts cannot compel him to institute any criminal proceedings which he does not wish to institute or to go with any criminal proceedings which he has decided to discontinue ...” In the 1979 Federal Court case of Sri Lempah Enterprise, Raja Azlan Shah differed from Tun Suffian and held that “... unfettered discretion is a contradiction in terms ... Every legal power must have legal limits, otherwise there is dictatorship ...” Other seminal cases that have discussed this issue were the Federal Court cases of Indira Gandhi (2018), Semenyih Jaya (2017), the Court of Appeal case of Chin Chee Kow (2019) and the Federal Court case of Sundra Rajoo Nadarajah (2021). In Sundra Rajoo, the Federal Court held that the AG/PP’s prosecutorial discretion under Article 145(3) was intact but it was amenable to judicial review in “appropriate circumstances”. It is obvious from these cases that the courts have tussled and struggled with the AG/PP’s power in Article 145(3), seemingly reluctant to strike down the impugned words because they resided in the Constitution. But case law and public opinion illustrate the legal zeitgeist that people do not want such an unchecked power given to one man. Wouldn’t it be good if the legislature could put that issue beyond doubt. It could amend Article 145B(1) of the bill by deleting the controversial words “exercisable at his discretion”.The clause would thus read as: “The Public Prosecutor 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.” [emphasis and amendment added]. The discussion in Parliament regarding the deletion of these words would record in the Hansard the intention of Parliament to remove the prosecutorial discretion of the Public Prosecutor. There are other proposals in the bill concerning this new office of the PP that need further deliberation, such as who should appoint the PP and how that dilutes his independence, his lack of accountability to Parliament, his need to give reasons for not prosecuting, a code of ethics that prescribe prosecutorial guidelines, etc. Perhaps these will be discussed in a later column. For now, may I beseech our MPs to act fearlessly in the interests of the rule of law and not allow the passage of this Bill without amendment and further study. “Unchecked authority warps morality; as power increases, a person’s sense of morality decreases. The concentration of power causes the holder to prioritise his own interests over the common good.” The views expressed are those of the writer and do not necessarily reflect those of FMT.