Lamin Mohd Yunus PCA:

For the purpose of the deliberation on the cases before us we reproduce below the text of cl. (3) of art. 145of the Federal Constitution:

145(3) The Attorney-General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a syariah court, a native court or a court-martial.

This clause states categorically that the Federal Constitution, the supreme law of the land, confers the Attorney-General with the power to institute, conduct or discontinue any proceedings for an offence "other than proceedings before a syariah court, a native court or a court-martial" because of the words "shall have power". However, he can only exercise that power pertaining to proceedings only in a civil court because the clause expressly does not allow him to appear in other courts namely any syariah court in the country, the native court and any court-martial. Of course to institute a proceeding etc. shall be at his discretion. His power relates to proceedings "for an offence" in a civil court meaning in our view from a magistrate court to the highest civil court in the country namely the Federal Court.

Next if we may observe, cl. (3) concerns itself only with proceedings "for an offence". The word "offence" is not qualified as to whether it is seizable or non-seizable offence. From the reading of the clause, its intention can be no other than to confer the Attorney-General with a general power to institute etc and so the word "offence" must cover both seizable and non-seizable offences.

The next question, it may be asked, whether the word "offence" refers to any offence as prescribed under any law Federal or State. (Of course matters within the jurisdiction of a syariah court, a native court or a court-martial are outside the purview of the Attorney-General). It would appear to be affirmatively so. Does this make the Attorney-General the exclusive authority or the sole authority in the whole country having the power to "institute, conduct or discontinue" any proceedings in any civil court? Clause (3) does not stipulate an offence under "any law". The words "any law" do not appear in cl. (3), however. Otherwise, it would have been to that extent clearer for in terms of definition under art. 160, they would "include" any "written law" be it in force "in the Federation or any part thereof". If such had been the case, any law passed after Merdeka Day which was "inconsistent with" the Federal Constitution would immediately attract art. 4(1) of the Constitutionand it would be struck down as being void to the extent of its inconsistency. Both the Federal and State legislatures have been known to have enacted laws investing certain Federal and State authorities with the power to conduct prosecutions for offences as prescribed in the respective acts and enactments some of which have been brought before the court and dealt with as each court thought appropriate or correct. (Some such laws are eg, Securities Industry Act 1983, Securities Commission Act 1993see Repco Holdings Bhd v. PP[1997] 4 CLJ 740; Environmental Quality Act 1974 see PP v. Pengurus, MBf Building Services Sdn Bhd[1998] 1 CLJ 678; Immigration Act 1959/63 see Kyohei Hosol v. PP[1998] 1 CLJ 1063; Forest Ordinance (Sarawak Cap. 126); Wild Life Protection Ordinance (Sarawak), see PP v. Lee Ming & Ors[1999] 1 CLJ 379; Sabah Forests Enactment 1968 see PP v. Jamil Jilap[2000] 5 CLJ 368).

Perhaps the omission of the words "any law" in cl. (3) was intentional. In so far as the prosecution of offences under the Penal Code there is no doubt that the Attorney-General is the sole authority having the power of control and direction in respect of it.

The Criminal Procedure Code (CPC) makes express provisions as spelt out in s. 376(i) of the CPCand it reads:

(i) The Attorney-General shall be the Public Prosecutor and shall have the control and direction of all criminal prosecutions and proc