AG must balance discretion with public interest, says lawyer

Chief Justice Tengku Maimun Tuan Mat said judges must show accountability through written judgments, while Attorney-General Ahmad Terrirudin Salleh said he was under no duty to explain his decisions.

PETALING JAYA: A former Malaysian Bar president says the attorney-general (AG) must strike the correct balance between the exercise of prosecutorial discretion accorded to him by law and acting in the public interest.

Salim Bashir said as head of prosecution, the AG is accountable to the public whenever criminal charges are initiated or discontinued against any person in court, especially in high-profile cases.

“There are no specific provisions in the constitution or Section 376 of the Criminal Procedure Code that mandates that the public prosecutor must provide reasons for exercising his prerogative.

“However, if there is public clamour for reasons why charges have been withdrawn in cases of public interest, it would certainly bode well for the AG, as the guardian of public interest, if he furnishes his reasons.

“When there is a pressing need to be accountable to the public, the AG must consider stating the reasons for certain positions taken by his office,” he told FMT.

The lawyer said an explanation by the AG in high-profile cases would curb unnecessary speculation and reduce accusations levelled at the country’s legal institutions.

Salim also said members of the public must understand that, when the prosecution applies to conditionally discharge an accused, the options available to the courts are limited.

The court is bound by the request and can only either give a discharge not amounting to acquittal (DNAA) or a full acquittal.

He said it was necessary to separate the office of the AG from that of the public prosecutor to ensure the latter’s independence and ward off allegations of undue interference by the executive in the exercise of prosecutorial discretion.

At the opening of the legal year on Monday, AG Ahmad Terrirudin Salleh courted controversy for saying he was under no duty to explain publicly his reasons for initiating or discontinuing criminal charges against any person.

Terrirudin said the public prosecutor’s discretion in filing and discontinuing charges is enshrined under the Federal Constitution.

His comments were criticised by Lawyers for Liberty, which said the Federal Court had in a recent case emphasised that the discretion vested in the public prosecutor was not unfettered.

In contrast, Chief Justice Tengku Maimun Tuan Mat had at the same event called on judges to be transparent and accountable to the public for their decisions by setting them out in writing. This was to safeguard public confidence in the judiciary, she said.

Political analyst Lau Zhe Wei applauded the chief justice’s call, saying it would boost public confidence especially since the law does not make it mandatory for judges to issue written reasons for their decisions.

Lau, of the International Islamic University Malaysia, said Malaysians would lose confidence in government institutions, especially the AG’s Chambers (AGC), if major decisions are not explained.

“With public confidence, the public may still agree or disagree with the AGC’s decisions, but they would not question it. Without public confidence, every decision will be questioned,” he said.