Attorney general’s discretion is not unfettered

The attorney general is a public officer endowed with discretionary power under Article 145 of the Malaysian Federal Constitution to institute, conduct, or discontinue any criminal proceedings.

The question arises: where a public officer’s decision is subject to judicial review, does this also apply to the attorney general?

Background

In Peguam Negara Malaysia v Chin Chee Kow, the Federal Court considered whether the attorney general’s prerogatives are amenable to judicial review.

The case comprised two appeals — Civil Appeal 58 (the first appeal) and Civil Appeal 59 (the second appeal) — both focusing on Section 9 of the Government Proceedings Act 1956.

Section 9(1) provides that the attorney general may give written consent to persons with an interest in public, religious, social, or charitable trusts to initiate a suit on behalf of the government or public.

In the first appeal, the question was whether the attorney general’s written consent in civil cases was non-justiciable or non-reviewable.
In the second appeal, the question was whether the attorney general’s written consent in civil cases was reviewable.

First appeal

The deceased testator, Cheah Leong Kean, created a charitable trust in his will, allocating RM15,000 for constructing a pagoda and outhouses for the Persatuan Kebajikan dan Amal Liam Hood Thong Chor Seng Thuan.

The initial trustees failed to ensure that the construction was completed according to the trust terms, resulting in insufficient funds. The association sought funds from third parties but had to be appointed as a trustee first.

The association applied to the attorney general under Section 9(1) for consent to apply to the High Court for trustee appointment. The attorney general rejected the application, citing prior consent given to the current trustees.

The High Court granted leave to the association’s secretary to file a judicial review. The Court of Appeal dismissed the attorney general’s appeal, leading to the present Federal Court appeal.

Second appeal

The second appeal concerned the partition of land into two areas for the Thai and Burmese communities. The attorney general gave consent under Section 9 to appoint trustees for both communities.

The appellants executed a trust deed consenting to be appointed trustees for the Burmese community and entered a joint venture with a developer.

The second respondent filed an originating summons to set aside the appellants’ registration as landowners and obtained the attorney general’s consent to proceed. The appellants filed an ex parte application to quash this consent, which was dismissed by both the High Court and Court of Appeal. The matter then came before the Federal Court.

Decision

The Federal Court held that the attorney general derives the power to give consent from Section 9(1) of the Government Proceedings Act. Therefore, the courts have jurisdiction to review the attorney general’s decisions made pursuant to statute.

This statutory discretion differs from the attorney general’s unfettered discretion in prosecuting criminal offences under the Federal Constitution, which cannot be applied to civil cases. Allowing such absolute discretion in civil matters could lead to abuse, particularly when public interests are involved.

Consequently, the attorney general’s power under Section 9(1) is not absolute and is subject to legal limits.

Contact

For further information, please contact Gan Khong Aik or Lee Sze Ching (Ashley) at Gan Partnership by telephone (+603 2201 1130) or email (khongaik@ganlaw.my or szeching@ganlaw.my). The Gan Partnership website is accessible at ganlaw.my.