The Malaysian Bar will appeal a High Court ruling preventing it from seeking a judicial review against the attorney-general's decision to not prosecute Prime Minister Najib Abdul Razak on 1MDB related matters.

"This is a significant case, because it deals with the ambit of the prosecutorial powers of the attorney-general as public prosecutor, and the independence of a statutorily incorporated investigating body such as the MACC (Malaysian Anti-Corruption Commission).

"The case also concerns the cardinal principle that no instrumentality of government is above the law in a system founded on the rule of law," Bar Council president Steven Thiru said in a statement last night.

Thiru said that Malaysian Bar was disappointed with the ruling made on Nov 11 that the decision of the AG was not subject to judicial review (non-justiciable) in a court of law, and it is based on powers and discretion detailed in the constitution.

"It is regrettable that the High Court did not adequately take into account the Malaysian Bar’s submission that the attorney-general, in arriving at his decision, purported to exercise powers under Article 145(3) of the Federal Constitution, when no such powers exist within that provision.

"The issue of non-justiciability is therefore irrelevant, because any exercise of powers that is beyond the scope of what is permitted by law is always reviewable by a court," argued Thiru.

The Bar Council president quoted the late Raja Azlan Shah during his tenure as Chief Justice of Malaya:

“Unfettered discretion is a contradiction in terms... Every legal power must have legal limits, otherwise there is dictatorship...

"In other words, every discretion cannot be free from legal restraint; where it is wrongly exercised, it becomes the duty of the courts to intervene.”

Therefore, Thiru argued, although the exercise of discretion may be vested in an office, the exercise of it can never be beyond judicial scrutiny.

The Malaysian Bar, former federal minister Zaid Ibrahim and former Umno leader Khairuddin Abu Hassan had all filed applications for leave to seek a judicial review of the AG's decision not to prosecute Najib on the transfer of funds alleged to be from GLCs into his personal bank accounts.

However, the High Court rejected their applications.