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PROSECUTORIAL DISCRETION OF THE ATTORNEY-GENERAL IS NOT IMMUNISED FROM CIVIL ACTIONS

The exercise of prosecutorial discretion of the Attorney-General is not immunised from civil actions.

The Court of Appeal in Mohammad Najib bin Tun Haji Abdul Razak v Thomas Thomas @ Mohan a/l K Thomas [2026] MLJU 829 held that:

“[52] For my part, I agree with the views expressed in the trio of cases that I discussed above. At the risk of repetition, I note that whilst art 145(3) of the Federal Constitution grants prosecutorial discretion to the Attorney General, it does not immunize the wrongful exercise of it from civil actions. Neither does any other written law provide such protection to the Attorney General. Furthermore, in all the cases in the law reports where the Attorney General or Deputy Public Prosecutors have been sued for malicious prosecution, save in the instant case in the court below and in the Nik Suhaimi case that was decided by the same High Court Judge, no court has said that said tort cannot be availed in a civil action because the prosecutorial discretion under art 145(3) will operate to extinguish it at the outset. For the above reasons, I am of the view that the exercise of prosecutorial discretion of the Attorney General under art 145(3) is not immunized from civil actions if it is abused and exercised in bad faith.”


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