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The Attorney-General’s statement, widely reported in the press on 12th May 1999, that those who allege “selective prosecution”, or make any such allegations, against him risk prosecution shows a lack of respect or understanding of the concept of democracy and the Rule of Law.

Being the first law officer of the nation and entrusted with the duty to protect the Constitution and public interest, he ought to constantly keep in mind the well-known advice of Lord Denning:-

“To every subject of the land, however powerful, I would use Thomas Fuller’s words over three hundred years ago, “Be ye never so high, the law is above you”

He ought also not to forget that the Prime Minister had, during the constitutional crisis involving the immunity of the Rulers in 1992, also affirmed his belief that “No one is above the law”.

If one truly believes that no one is above the law, then one cannot possibly accept the Attorney-General’s argument that “to allege double-standards against the Public Prosecutor in deciding which cases ought to be brought before the courts…amounts to denigrating and undermining the administration of justice”. However widely the passage which the Attorney-General quoted from the judgment in the Lim Guan Eng case may have been put, it cannot have been intended by the Court of Appeal to have the effect of holding the Attorney-General ever so high as to be above the law. Whether the allegation of “selective prosecution” or “double-standards” constitutes an offence would depend on whether the Attorney-General had, indeed, acted wrongly.

The reason given for the proposition that the Attorney-General cannot be criticised for deciding whether or not to prosecute is that it is in him alone that the discretion to make such a decision is conferred by Article 145(3) of the Federal Constitution. That is undeniably so. But in a democracy, no discretion can ever be taken to be absolute. As Raja Azlan Shah F.J. (as he then was) said:-

“Unfettered discretion is a contradiction in terms…Every legal power must have legal limits, otherwise there is dictatorship…In other words, every discretion cannot be free from legal restraint…”

The prevention of the abuse of discretionary power is inherent in the concept of the Rule of Law. The authority charged with dealing with such abuse is the courts. As with every question of abuse, the courts must try to strike a balance between the competing interests posed by the need for a fair and efficient administration of justice and the need to protect the citizen against the arbitrary exercise of power, in this case, by the Attorney-General. It is the courts that must determine whether a criticism of the Attorney-General with regard to his performance of his duties under Article 145(3) amounts to an abuse of power.

It is, therefore, not in keeping with his office for the Attorney-General to warn citizens that they could be prosecuted for sedition, if they criticised him. So long as he exercised his discretion properly he should not fear any criticism. If he is criticised for any alleged failure, he must justify his decision by explaining his action. Ignoring the criticism by threatening prosecution is not the way to solve the problem.

The Attorney-General, above all others, must take the lead in showing that public officers, especially those holding high office, subscribe to the principle of accountability and transparency. His statement, sadly and regrettably, is gravely wanting in that respect.

Dated: 14th May, 1999

R.R. CHELVARAJAH
President
Malaysian Bar

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