The Attorney General’s Exercise of Prosecutorial Discretion in Malaysia: A Critique of Scope, Limitation and Challenges

Abstract

The dual role played by the Attorney General of Malaysia as the legal advisor for the government and the person who decides on whether criminals are prosecuted, raises the question whether he can discharge his duties impartially and objectively, especially when deciding whether to prosecute high ranking members of the government for crimes. This paper seeks to address the potential conflict that may arise from the existence of this dual role, is the scope of the prosecutorial discretion, the limits placed upon it by the law and whether the Attorney General can claim immunity in respect of the consequences of the exercise of his discretion. The paper comprises of doctrinal analysis on the scope of discretionary power of the Attorney General and through comparative analysis of several other jurisdictions, examines the trend and contemporary approach on the exercise of such power. It is found that the judiciary in the exercise of judicial review is keen on maintaining the status quo, despite attempts of more progressive approach. This paper provides some recommendations of the Attorney General’s prosecutorial role on a proper exercise of discretion, promoting transparency as decisions shrouded in secrecy diminished the standing of the Attorney General’s office.