PETALING JAYA: It would be unconstitutional to prevent the prosecution from letting off accused politicians with a discharge not amounting to an acquittal, according to constitutional lawyer Bastian Pius Vendargon.
He contended that the proposal, raised by Bersih chairman Faisal Abdul Aziz, would limit the Attorney-General’s power to institute, conduct or discontinue any proceedings for an offence as provided by the constitution.
The proposed law would amount to discrimination, because the constitution guarantees equality before the law for every person.
“If you give the power of discretion to the AG, you cannot then legislate it because it is an important power of law, which affects criminal prosecution,” Vendargon said.
Faisal’s proposal was to prevent the AG from applying for a conditional discharge when politicians are on trial for corruption.
In September 2021, the prosecution withdrew all 47 corruption charges against deputy prime minister Ahmad Zahid Hamidi in the Yayasan Akalbudi trial. The AG, Ahmad Terrirudin Salleh, later said the prosecution is not required to give any reasons why it is withdrawing charges.
The Malaysian Bar is challenging the AG’s decision in a case currently before the High Court in Kuala Lumpur.
Make AG explain his reasons
Vendargon said the government should consider legislation to require the AG to give “cogent reasons” for withdrawing charges.
“For transparency, those reasons must be given for everyone to know,” he said. “In any transparent democracy, exercise of power must be accompanied by valid reasons, it must not be arbitrary,” Vendargon said.
Another lawyer, Baljit Singh, said the AG is given the right to drop charges to save resources for the judicial system, as when the accused is on the deathbed, or when it is more expedient to settle out of court.
He said Malaysia should emulate Hong Kong with a Prosecution Code as a guideline for prosecutors, while adhering to the principles in the constitution.
The Hong Kong code states that the prosecutor must at all times act in the public interest and be guided or directed by public interest considerations when applying the rule of law.
