SEPTEMBER 5 — Deputy public prosecutor Datuk Mohd Dusuki Mokhtar listed 11 reasons for the prosecution decision to discontinue the proceedings on all charges against Datuk Seri Ahmad Zahid Hamidi.

On the ninth reason, Dusuki said: ”The accused also raised a very serious issue in his representation letters, namely the allegation that he is a victim of selective prosecution from the previous government regime. The attorney general is of the view that it is very important for the prosecution and the MACC to look into and also investigate this claim.”

Perhaps we should recall that former prime minister Datuk Seri Najib Razak had filed a civil claim in October 2021 against Tommy Thomas who was then the Attorney General/Public Prosecutor of Malaysia (AG/PP) as the First Defendant and the Government of Malaysia as the Second Defendant (Civil Suit No. WA-21NCvC-193-10/2021). The claim against the Government of Malaysia was, however, dropped with Tommy Thomas as the sole Defendant.

Najib’s claim was premised solely on the conducts and actions of the Defendant. It essentially alleged that the Defendant as the former AG/PP did not exercise his power for the authorised purpose but for his own agenda. He had allegedly interfered in the investigation and attempted to prejudice and suppress the Plaintiff.

The alleged conducts/actions of the Defendant had given rise to the following causes of action upon which the Plaintiff had filed the suit for, namely (a) misfeasance in public office; (b) malicious abuse of the legal process or malicious process; and (centre) negligence and recklessness in the discharge of duties as Attorney General.

It was alleged that as the PP, the Defendant had used the discretionary powers under Article 145 (3) of the Federal Constitution to charge the Defendant for 35 offences (under 4 cases) following the outcome of investigations conducted by the investigating agencies — that is, the police and the Malaysian Anti-Corruption Commission (MACC).

The four cases were (a) The 1Malaysia Development Berhad ("1MDB”) case; (b) The International Petroleum Investment Company ("IPIC”) case. (centre) The alleged abuse of power under the Malaysian Anti-Corruption Commission Act 2009 ("MACC Act 2009”) case; and (d) The alleged money laundering under the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 ("AMLATFPUAA 2001”) case.

Interestingly, if not curiously, the SRC International Sdn Bhd ("SRC”) case was not included as part of the claims, the case having been decided finally in the Federal Court whereby the conviction of the Plaintiff was affirmed. The Plaintiff is now serving his prison sentence.

The Defendant counter filed an application to strike out the Plaintiff’s claim. In his application, the Defendant argued rigorously that the claims should be struck out as there was no cause or no reasonable cause of action and hence it was conspicuously clear that the claim on the face of it is "obviously unsustainable”. This is because the Defendant as the PP was conferred a wide discretion and hence enjoyed immunity from any proceedings against him.

Further, the Plaintiff’s claims were scandalous, frivolous, vexatious and an abuse of the Court’s process. The three causes of action, namely misfeasance in public office, malicious abuse of process and negligence/recklessness, all of which relate to the Defendant’s exercise of his discretion to prefer the 35 charges against the Plaintiff in the four cases.

The Plaintiff, on his part, argued with equal rigor amongst others that his main claim against the Defendant was about the various conducts and actions of the latter which, amongst others, were oppressive and prejudicial to the Plaintiff.

The High Court judge, having perused all the cause papers and heard submissions of both parties, on November 25, 2022 allowed the Defendant’s application for striking out.

Justice Ahmad Bache said:

"It is trite that under Article 145 (3) of the Federal Constitution, the Attorney General/Public Prosecutor was conferred the power to exercise at his discretion to institute, conduct or discontinue any proceeding for criminal offences. See also Section 376 of the Criminal Procedure Code ("CPC”).

"Put it in another way, under Article 145 (3), the Attorney General/Public Prosecutor has the power to charge any person, to reduce the charge, to increase the charge or withdraw the charge against any person already charged.

"There are many lines of high authorities that confirmed such powers of the Public Prosecutor and that they are not justiciable. It follows that, except for the recent decision in Sundra Rajoo a/l Nadarajah v. Menteri Luar Negeri, Malaysia & Ors [2021], such discretion whether or not to prosecute cannot be made a subject matter of any proceedings in our Court.

"As the discretion of the Attorney General/Public Prosecutor is almost unfettered, this Court ruled that the causes of action for malfeasance, malicious process and negligence do not arise in the first place. This position of the law can be clearly seen in the long line of high authorities.”

In one of the cases (Anwar Ibrahim v. Public Prosecutor [2002]), Federal Court Judge Haidar dismissed the contention of vexatiousness or oppressiveness on the part of the AG/PP in preferring charges. The learned judge said:

"The question of oppression or vexatiousness on the part of the Attorney General by mounting a prosecution does not arise. This is a matter entirely within the discretion of the Attorney General under art 145 (3) of the Constitution to prefer any charges for offences under any law he deems fit, depending on the facts of the case and taking into account the public interest element into consideration (Karpal Singh & Anor v PP [1991]).”

The most recent development in respect of the justiciability of Article 145 (3) is the Federal Court’s decision in Sundra Rajoo. However, the decision did not alter the position of the unfettered discretion of the AG/PP, more so the issue in that case was different — that is, whether Sundra Rajoo had immunity from prosecution or otherwise, as a suspect. That decision only opened the avenue of judicial review. Even so, the Federal Court held that it was only in rare and exceptional cases that the decision might be judicially reviewed.

Justice Ahmad Bache further observed that the Plaintiff’s cause papers did not reveal sufficient details — that is, they were vague, devoid of material facts, substance and particulars. For example, it was explained when, how and what the Defendant did that had given rise to the three causes of action of misfeasance in public office, malicious process and negligence against the backdrop of the discretionary powers conferred upon him by the Federal Constitution.

The Plaintiff also alleged that the Defendant interfered or obstructed investigations but failed to give particulars as to how it was done, for example through coercion of witnesses or forging of evidence. Hence, the Plaintiff failed to provide cogent materials to anchor his assertions to support his claims.

In addition, the Plaintiff failed to state how the Defendant had deliberately acted beyond his powers with malice — that is, that the Defendant "had deliberately targeted the Plaintiff or had acted under instruction of the Pakatan Harapan Government”.

According to the learned judge, the Plaintiff "surprisingly also did not plead that his trials in the 4 criminal cases have already been compromised because of the Defendant’s actions” or "why and how the prosecution of the 35 charges (in the 4 cases) were not in accordance with the law.”

The Plaintiff’s claim was accordingly struck out. The PP has "almost unfettered” discretion to prefer charges and discontinue proceedings, it is also said that oppression or vexatiousness on the part of the PP by mounting a prosecution should not arise preferring charges.

The Plaintiff has filed an appeal against the decision.

So, while the discretion of the PP to prefer charges or to discontinue proceedings is "almost unfettered”, it is also said that the question of oppression or vexatiousness should not arise.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.