YOURSAY | ‘Absolute discretionary power cannot be exercised in bad faith.’

Bid to review AG's decision on PM will fail, says Shafee

Res Ipsa: Please compare apple to apple, senior lawyer Muhammad Shafee Abdullah, before drawing similarities to the Westminster model.

In the UK, there is clear separation of powers and the attorney-general (AG) for England and Wales advises the government and the royalty.

Decisions on prosecutions are made by a body known as the Crown Prosecution Service (CPS) which is merely overseen by the AG.

Hence, it would be very difficult to challenge such decisions in the UK courts since it is made by a body whereas here in Malaysia, it is in the hands of one person.

Our now world-infamous AG advises both the government and also makes decisions on prosecution. Additionally, he has also taken on the role of personal adviser to the PM. Isn't all this tantamount to conflict of interest that warrants intervention by the court?

Only time will tell so let’s keep our fingers crossed for now rather than jumping to premature conclusions.

MinahBulat: Shafee says absolute discretion of the AG, I can tell you article 145 (3) does not have the word “absolute”, it only uses the word “discretion”.

That discretion as we understand it must be exercised judiciously and the courts have the power to question it.

The challenge must be on a constitutional point on the interpretation of 145(3) of the federal constitution.

Bumiputhran: Yes, absolute discretionary power is required to be exercised judiciously on found facts and circumstances and the basis for the decisions must be accountable to scrutiny.

Absolute discretionary power cannot be exercised in bad faith that abuses the integrity of other corresponding Acts of Parliament, such as the Criminal Code.

The AG can be demonstrably shown that he is not executing his statutory functions to uphold the oath and the integrity of the country’s constitution.

So former law minister Zaid Ibrahim is telling Malaysians that the AG has got to be brought to the courts to justify the exercise of his absolute discretionary power for what it is intended.

Donplaypuks: Ex-Federal Court senior judge Gopal Sri Ram has given sound reasons why the AG's powers under Article 145(3) of the constitution are not absolute.

Only God may have absolute powers. We have inadvertently created a dictator. So, let Zaid file his case.

Kingfisher: Shafee has a point about the reference to Westminister model and the underlying significance of the persuasion inherent in relevant provisions of the law.

But what is amiss in this whole academic debate is that many, if not all, true blooded Westminster gentlemen holding positions of influence in governance would have relinquished their responsibilities with remorse and dignity if they had compromised and sullied their responsibility and accountability.

One wonders if the evolution of the English legal system had enabled provisions in law to exculpate those who may be deemed guilty of alleged wrongdoing without recourse to a judicial trial.

Scandal Country: Shafee, if the PM is innocent can you explain:

1. Why Gani Patail was sacked.

2. Why the task force was disbanded.

3. Why some members of the parliamentary Public Accounts Committee were made ministers.

4. Why Apandi said it was sub-judice when Najib did not answer questions.

5.Why MACC officers and the Special Branch director were transferred.

Are these the acts of an innocent man? Members of the public are not fools.

Multi Racial: This is unprecedented. We have never experience such situations before. If we have credible ministers, we would not have this situation now.

Unfortunately, all our cabinet ministers are allegedly mainly ‘yes men’ with the exception of a couple of them who have now been removed. The others should have asked Najib Abdul Razak to resign, if not they should resign en bloc to force him to resign. That did not happen.

We then expected the Umno supreme council to ask Najib to resign and that also did not happen. We expected BN to act and as expected and nothing happened.

So we hoped the authorities like the Malaysian Anti-Corruption Commission (MACC), AG, inspector-general of police (IGP) and Bank Negara governor to act against Najib. That also did not happen.

We expected BN, especially Umno members, to act against their president. They, too, did nothing.

At worst, we expected the media to put pressure. Unfortunately, they are singing the same ‘Najib is innocent’ tune.

Anonymous 2326501438321389: This is trite law in other jurisdictions - the discretion must be exercised judiciously. Even when a judge has discretion, he must exercise it judiciously.

Anak JB: Suppose someone blatantly shoots or murders somebody with irrefutable evidence and the AG said he cannot find any evidence and refuses to charge.

Does the AG have absolute discretionary power? If he does, this is not democracy but absolute dictatorship.

'Zaid's chances in court as slim as winning a jackpot'

Kim Quek: Irrespective of what a judge may think or how he may act, Zaid is right to ask the court to intervene as the AG’s decision is a blatant betrayal of his constitutional duty to the nation and an act that has brought great disrepute to the country as testified by the global indignation and ridicule that has greeted this debacle.

I salute Zaid for his gallantry in undertaking this patriotic task to defend our rule of law. It will at least help to awaken the conscience of our people, if not the judicious judgment of the judges, whose prevailingly battered reputation will once again be put under the limelight.

Legit: So it is confirmed that the legal system in this country is completely broken. Don't ever expect justice to be served and our lawyers all better quit their profession and do something else.

Malaysia has officially joined the ranks of all those riff-raff nations in the most remote corners of the world.

Alanthechan: Yes, the chances of success are slim. But like buying a lottery, the chances of losing are 99.99 percent. If you don't buy the lottery, your loss is 100 percent.

So there is still a .001 percent chance…

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