By Datuk Syed Azimal Amir Syed Abu Bakar
- Make an Order in the nature of Certiorari setting aside the decision of the AG not to prosecute and the order he made to the MACC to close their investigations.
- Make a further Order in the nature of Mandamus compelling the AG to utilize his discretion under Article 145(3) to properly consider instituting criminal proceedings against Dato’ Sri Najib Tun Razak.
- Declare that the decision of the Attorney-General compelling the MACC to close its investigations is ultra vires his power under Article 145 (3) of the Federal Constitution.
The above are the suggestions by Zaid Ibrahim which I am of the opinion that he can’t do this.
First and foremost certiorari is not the proper mode of application.
Certiorari is an extraordinary prerogative writ granted in cases that otherwise would not be entitled to review.
A petition for certiorari is made to a superior appellate court, which may exercise its discretion in accepting a case for review, while an appeal of a case from a lower court to an intermediate appellate court, or from an intermediate appellate court to a superior appellate court, is regulated by statute.
Appellate review of a case that is granted by the issuance of certiorari is sometimes called an appeal, although such review is at the discretion of the appellate court.
The decision made by the AG is not a quasi judicial or judicial decision that could be reviewed by the court.
Whether the power exercised by the AG under Art 145 (3) of the Federal Constitution could be scrutinized by the court?
They are few decisions by the apex court that the court do not have the inherent jurisdiction on the AG ‘s discretionary power.
The issue on mandamus and compelling the AG to charge a person is not proper and against the Federal Constitution.
Inherent jurisdiction of the court to be used against the power of the Attorney General given under Art 145 (3)of the Federal Constitution.
3) The Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offense, other than proceedings before a Syariah court, a native court or a court-martial.
Mills v Cooper 119671 2 All ER 100, 104 Lord Parker CJ said :
“Every Court has undoubtedly a right in its discretion to decline to hear proceedings on the ground that they are oppressive and an abuse of the process of the court”
Metropolitan Bank Ltd & Anor v Poolev [1881-18851 All ER Rep 949, where it was held:
“There is an inherent power in every court of justice to stay a manifestly vexatious suit and to prevent vexatious suit and so protect itself from an abuse of its procedure”
Can the court uses their power to override the power of the Attorney General in Malaysia?
In Supreme Court in Karpal Singh v PP of the constitutional consequences of relying on the English concept of common law (one of which is the concept of inherent jurisdiction of the Courts).
The Supreme Court cautioned that, unlike UK, the Malaysian Federal Constitution which is a written law, is specifically declared to be the supreme law of the land, and that the UK has no criminal procedure code as that enacted by our legislature.
The Court also considered the effect of section 5 of the Criminal Code which provides for English law relating to criminal procedure to be applied when there does not exist any special provision on the matter either in the Code or any other existing circumstances.
In his speech delivering the judgment of the Court, Abdul Hamid Omar LP said at pages 548-549:
“Perhaps it is appropriate that we now pause to consider the constitutional consequences of relying, on the English common law concept. Unlike UK, the Constitution of the Federation which is a written law is specifically declared to be the supreme law of the land. Also, it is to be noted that UK has no criminal procedure code as enacted by our legislature.
“For our immediate purpose we wish to refer to art 145(3) of the Constitution which states that the Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before Syariah Court etc.
“The discretion vested in the Attorney General is unfettered and cannot be challenged and substituted by that of the court’s.
The reasoning and logic behind such contention is well illustrated in the case of PP v Lee Tin Bau  1 MLJ 388, Long bin Samat & Ors v PP  2 MLJ 152, PP v Datuk Harun bin Haji Idris and Ors  2 MLJ 116 and Poh Cho Ching v PP  1 MLJ 86. In the circumstances, it is superfluous to reiterate the same points.
See Teow Chuan & Ors v Ooi Woon Chee & Ors  4 Mil 35).
As such we may hasten to add that the inherent jurisdiction of the Court is therefore not as wide as it seems to be. Much depends on the facts and circumstances and clearly the Court cannot exercise its inherent jurisdiction in respect of any matter covered by specific provisions of the law or if its exercise would infringe any specific provisions of the law.
In this aspect it is apposite that we refer to the decision of the Supreme Court of India in the case of Arun Shankar Shukla v State of U.P 1999 Cr LJ 3964. The Supreme Court in addressing the inherent powers of the High Court which is statutorily envisaged under s 482 of the Indian Criminal Procedure Code observed that:
“It is true that under s 482 of the Code, the High Court has inherent powers to make such orders as may be necessary to give effect to any order under the Code or to prevent the abuse of process of any Court or otherwise to secure the ends of justice.
But the expression “abuse of the process of law” or “to secure the ends of justice” do not confer unlimited jurisdiction on the High Court and the alleged abused of the process of law or the ends of justice could only be secured in accordance with law including procedural law and not otherwise.