DECEMBER 5 ― Given the Malaysian Bar announcement on Monday that it has filed a judicial review against the attorney general’s (AG) decision to apply for a discharge not amounting to an acquittal (DNAA) in deputy prime minister Datuk Seri Zahid Hamidi’s case, it is instructive to look at the High Court case of Shashi Kumar a/l Shanmugam (Presiden Global Human Rights Federation) & Ors v Ketua Polis Negara, Polis DiRaja Malaysia & Anor decided about two months ago.
The case concerns the application for leave for judicial review under Order 53 of the Rules of Court 2012 by five applicants (the Applicants) seeking reliefs of an order of certiorari to quash the no further action (NFA) decision against Ustaz Mohd Syakir; an order of mandamus to instruct the AG to take action against Ustaz Mohd Syakir; and a declaration that the decision not to take action against Ustaz Mohd Syakir is invalid in law and an abuse of power.
After hearing the parties, High Court judge Ahmad Kamal dismissed the application. The learned judge said:
“It is to be emphasized here that this judicial review application is to challenge the decision made by the [AG]. Therefore, the low threshold test set out in various case laws is no longer applicable to this application. The threshold for this leave application will be subjected to a higher standard of review.
“This high standard of review has been discussed in the following cases:
(a) Rosli Dahlan v Tan Sri Abdul Gani Patail & Ors  11 MLJ 481 (High Court);
(b) Peguam Negara Malaysia v. Chin Chee Kow (as secretary of Persatuan Kebajikan dan Amal Liam Hood Thong Chor Seng Thuan) and another appeal  3 MLJ 443 (Federal Court);
(c) Sundra Rajoo Nadarajah v. Menteri Luar Negeri, Malaysia & Ors;  5 MLJ 209 (Federal Court); and
(d) Sivakumar a/I Sockalingam & Anor v. Yang Berhormat Peguam Negara, Malaysia  MLJU 2946 (High Court).”
In the first of the Federal Court decisions above, the apex court ruled that the AG’s power to give consent or otherwise under Section 9(1) of the Government Proceedings Act 1956 was not absolute and was subject to legal limits. Unfettered discretion was contradictory to the rule of law.
In the second decision, the apex court ruled that the AG did not have absolute or unfettered discretion under Article 145(3) of the Federal Constitution to institute, conduct or discontinue any proceeding for a criminal offence. In appropriate, rare and exceptional cases, such discretion was amenable to judicial review.
From the above, it can be seen that the law concerning the power of AG has undergone some development, which is, while previously the court constantly held that the decision of AG under Article 145(3) to institute, conduct, or discontinue criminal proceedings is not amenable to judicial review, the court at the highest level has now recognised that such power of AG is reviewable in certain exceptional circumstances.
It needs to be emphasised that only in appropriate, rare and exceptional cases such discretion is amenable to judicial review. This is because a decision made by the AG is cloaked by the presumption of legality. The burden therefore lies on the challenging party to rebut the presumption of legality by adducing a compelling prima facie evidence.
According to Justice Ahmad Kamal, at the leave stage for judicial review, it is incumbent on the applicant to satisfy a two-step threshold, namely:
• First, an applicant needs to show he has the legal basis to challenge the decision of the AG on the traditional grounds of judicial review which among others includes illegality, procedural impropriety, irrationality and mala fides. The burden of proof lies on the applicant.
• Second, the applicant needs to adduce a compelling and prima facie proof that the decision or omission of the AG falls within one of the grounds or any one of them. Once the threshold is crossed, the burden lies on the AG to justify his actions or inactions in court.
So, while the AG’s power under Article 145(3) is reviewable, it is subject to a high threshold of scrutiny. On the authority of the Federal Court decision in Sundra Rajoo particularly, Justice Ahmad Kamal ruled as follows:
• An application for judicial review of the decision of the AG is subject to higher standard of review
• The exercise of the prosecutorial power of the AG under Article 145(3) is cloaked with the presumption of legality.
• With presumption of legality, it is presumed that the AG acted legally in making the decision of NFA to be taken against Ustaz Mohd Syakir.
• In order to succeed in this application for judicial review, the Applicants have to rebut the strong presumption of legality with compelling prima facie evidence of grounds within the recognised reasons for judicial review.
• The Applicants must provide more than police reports and excerpts of speeches to challenge the strong presumption of legality. Police reports and edited videos uploaded on social media, without more, do not constitute compelling prima facie or convincing evidence to rebut the presumption of legality.
• Another way to rebut the presumption of the legality of the AG in exercising his discretion under Article 145(3) is to demonstrate that the AG acted with mala fide (bad faith) when making such a decision. However, the Applicants have also failed to show that the AG made the decision with mala fide.
• As this nature of application requires a higher standard of review, the Applicants have failed to cross the high threshold.
It remains to be seen if the Malaysian Bar will meet the high threshold of scrutiny in its leave application for judicial review.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.