By William Leong
I am responding to two points raised by the Honourable MP for Beaufort, Azizah Mohd Dun, on my public questions to Prime Minister Tan Sri Muhyiddin Yassin.
I asked the PM to issue a public statement on whether he approves of the plea bargain deal for the discharge not amounting to an acquittal of Riza Shahriz Abdul Aziz of money-laundering charges involving US$248 mil (RM1.08 bil) linked to the 1Malaysia Development Bhd (1MDB) funds (“the Discharge Agreement”) and to issue a statement in reply.
This is because the public are entitled to a full and complete explanation for the sudden change in direction on the prosecution of these 1MDB cases. Covid-19 and the movement control order are not acceptable excuses for why this explanation is not forthcoming.
The other points raised by the Honourable Beaufort MP, unfortunately, are argumentum ad hominem, that is, they are part of a fallacious argumentative strategy whereby genuine discussions of the issues are avoided by attacking the character or personal attribute of the person making the argument rather than the substance of the argument itself. I do not wish to be distracted from answering the substantive issues nor to dignify fallacious arguments with a reply to them.
The first point: The AG’s discretion is not unfettered and absolute
The Honourable MP from Beaufort said that I ought not to ask the questions because the attorney-general’s (AG) prosecutorial discretion to charge or discontinue proceedings under Article 145(3) of the Federal Constitution is unfettered and absolute. This is not correct.
The common law jurisdictions provide the AG or officer responsible for prosecutions, a wide but not unlimited prosecutorial discretion to charge or to discontinue proceedings. The wide scope of prosecutorial discretion given by the courts is premised on the doctrine of separation of powers.
The courts also recognise that matters relating to policy and public interest considerations are not susceptible of judicial review because it is not within the constitutional or practical competence of the courts to assess their merits. However, it is accepted in all jurisdictions that prosecutorial discretion is not unfettered. The exercise of prosecutorial discretion is not immune from judicial review. Where the situation requires the courts in Malaysia, Singapore, the UK, the US, Canada, Fiji, Mauritius and Trinidad and Tobago have reviewed decisions of independent prosecutors and investigators.
Raja Azlan Shah as acting Chief Justice in the Federal Court case of Pengarah Tanah Dan Galian Wilayah Persekutuan v Sri Lempah Enterprise Sdn Bhd  1 MLJ 135 said:
“Unfettered discretion is a contradiction in terms… Every legal power must have legal limits otherwise there is dictatorship. In particular, it is a stringent requirement that a discretion should be exercised for a proper purpose, and that it should not be exercised unreasonably. In other words, every discretion cannot be free from legal restraint; where it is wrongly exercised, it becomes the duty of the courts to intervene.”
The Singapore Court of Appeal in The Law Society of Singapore v Tan Guat Neo Phyllis  2 SLR (R) 239 said in reference to the prosecutorial discretion conferred by Article 38(3) of the Singapore Constitution, which is similar to our Article 145(3), as follows:
“The discretionary power to prosecute under the Constitution is not absolute. It must be exercised in good faith for the purpose intended, to convict and punish offenders, and not for extraneous purpose… all legal powers, even a constitutional power, have legal limits. The notion of a subjective or unfettered discretion is contrary to the rule of law.”
The House of Lords in the United Kingdom case of R (Corner House Research) v Serious Fraud Office  AC 756 said:
“It is accepted that the decisions of the Director (Director of Public Prosecutions) are not immune from review by the courts, but authority makes plain that only in highly exceptional cases will the court disturb the decisions of an independent prosecutor and investigator.”
The House of Lords said the courts will review prosecutorial discretion where it has not been properly exercised:
“Of course, and this again is uncontroversial, the discretions conferred on the Director are not unfettered. He must seek to exercise his powers so as to promote the statutory purpose for which he is given them. He must direct himself correctly in law. He must act lawfully. He must do his best to exercise an objective judgment on the relevant material available to him. He must exercise his powers in good faith, uninfluenced by ulterior motive, predilection or prejudice.”
The second point: Is the Discharge Agreement in the public interest?
The Honourable MP for Beaufort said the PM’s open approval or disapproval of the Discharge Agreement will be interfering with the independence of the AG. Putting political pressure by threats explicit and implied on the AG to prosecute or to discontinue proceedings is interference. Seeking an explanation for discontinuing high-profile cases is not. Such an explanation is important for upholding the rule of law, maintaining confidence in prosecutorial independence, accountability and good governance. Public statements enhance the credibility of prosecutorial decisions and also have a positive effect on public confidence in the independence of the AG. Silence where disclosure is required produces a negative effect.
In Regina v Director of Public Prosecution Ex parte Manning  1 QB 330, the public prosecutor declined to prosecute an officer involved in the death of a prison inmate while under remand. The court said that in the absence of compelling reasons, the director of public prosecutions is expected to give reasons to vindicate his decision by showing that solid grounds exist for what might otherwise appear to be a surprising or even inexplicable decision. The Chief Justice added, he would be very surprised, if MPs do not welcome such a practice of providing reasons which good administrative practice requires.
In Canada, following the Parliament of Canada’s Ethics Committee finding that PM Justin Trudeau had improperly pressured the AG not to prosecute a large company, SNC-Lavalin, the Ethics Committee companion report recommended that the AG be encouraged to explain their reasons when taking over a prosecution or when declining to do so, in cases which raise significant public interest. Public accountability comes in the form of demands for explanations of significant public interest cases. Where legal proceedings relate to government actions, there is harm to the government by not providing an account to the public of its activities.
Applying the above principles to Riza’s Discharge Agreement, an explanation by the PM and AG is required. The statements by the Malaysian Anti-Corruption Commission and AG have raised more questions than answers.
If we accept the AG’s explanation, it appears he acted mechanically by following Tommy Thomas’ decision (which Thomas has creditably denied). This raises concern whether the AG exercised the powers granted to him by applying his mind to the facts and circumstances of the case.
A glaring omission is that the AG has not explained how the Discharge Agreement is for the public good, in maintaining law and order and to uphold the rule of law. How is the Discharge Agreement in the public interest? How does the Malaysian government benefit in discharging Riza by his returning assets worth only half of the amount stolen when the fine for conviction is five times the amount charged (about RM 5 bil) and under Section 426 of the Criminal Procedure Code full restitution of the amount stolen can be ordered? How does the Malaysian government benefit when these are the same assets the US Department of Justice would have returned to the government?
The PM has before this shown great courage and conviction to defy the then PM and the erstwhile AG to travel the length and breadth of the country to speak of his commitment to bring the 1MDB perpetrators to justice. Now one of those charged is discharged. The PM’s two-sentence statement does not explain how, under his watch, the Discharge Agreement instils public confidence and that justice, the rule of law and public interest have been served.
Malaysian society has long been grappling with the issue of ensuring better prosecutorial independence including a proposal to separate the positions of the AG and the public prosecutor. Former Chief Justice Tun Abdul Hamid Omar wrote in an article (The New Straits Times, July 15, 2018) that the proposal will not ensure greater prosecutorial independence because both their appointments and removal would still have to be made by the Yang di-Pertuan Agong on the advice of the PM. Tun Hamid Omar rightly pointed out that we cannot run away from the PM’s influence. In the end, he said, prosecutorial independence depends on the character of the AG and that of the PM. The Canadian Parliament Ethics Committee thinks a timely explanation for charging or discontinuing prosecutions will help instil public confidence in the independence of the prosecution.
Without an explanation on how public interest is served by the discharge of Riza, Malaysians are left to draw their own conclusions as to what kind of AG we have and what kind of PM we have. – May 21, 2020
William Leong Jee Keen is MP for Selayang.