Can You Sue the Attorney-General? Malaysian Court of Appeal Rules on Prosecutorial Accountability
The Malaysian Court of Appeal has delivered a landmark ruling confirming that the Attorney-General's prosecutorial powers are not absolute and can be subject to civil lawsuits if abused. In the highly publicised case of Mohammad Najib bin Tun Haji Abdul Razak v Thomas Thomas & Anor [2026] MLJU 829, the court clarified the boundaries of legal immunity regarding the country's top legal officer.
This decision marks a pivotal moment for institutional accountability and the rule of law in Malaysia.
The Core Legal Question: Absolute Immunity vs. Accountability
Under Article 145(3) of the Federal Constitution, the Attorney-General (AG) holds wide discretionary power to institute, conduct, or discontinue criminal proceedings. Historically, this has often been viewed as a shield against civil liabilities.
However, the Court of Appeal dismantled the notion of absolute immunity, drawing a clear line between the lawful exercise of duty and the malicious abuse of power.
Key Takeaways from the Court’s Judgment
In the grounds of judgment, the Court established several vital legal principles regarding civil actions against the AG or Deputy Public Prosecutors (DPPs):
- No Constitutional Shield for Wrongdoing: While Article 145(3) grants broad prosecutorial discretion, it does not immunise the wrongful, malicious, or bad-faith exercise of that discretion from civil lawsuits.
- Absence of Statutory Protection: There is no written law or statutory provision in Malaysia that provides absolute protection to the AG against tortious claims like malicious prosecution.
- Bad Faith Changes Everything: The court explicitly ruled that if prosecutorial powers are abused or exercised in bad faith, the affected individual has the right to seek civil remedies.
- Alignment with Judicial Precedent: The ruling aligns this case with historical legal precedents where courts have consistently allowed malicious prosecution suits to proceed, rejecting the idea that prosecutorial power automatically extinguishes civil claims at the outset.
Excerpt from the Judgment
Writing for the court, the learned judge clarified the legal position:
"Whilst Article 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... The exercise of prosecutorial discretion of the Attorney General under Article 145(3) is not immunized from civil actions if it is abused and exercised in bad faith."
Why This Matters for the Rule of Law
This judgment establishes a crucial check and balance within Malaysia's legal framework. By confirming that the AG and DPPs can be held liable for civil torts—such as malicious prosecution or misfeasance in public office—the judiciary has reinforced the principle that no public official is above the law. For citizens and legal practitioners, this opens a clear pathway to seek accountability when state machinery is demonstrably misused.