Absolute prosecutorial discretion anathema to criminal justice system

 

To my mind, the most uncivilised provision in the Federal Constitution in respect of our criminal justice system is without a doubt Article 145(3), which gives the Attorney-General (AG) his prosecutorial powers.

That provision gives the AG power, “exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence”, except for matters involving the shariah courts, native courts or court-martials.

Those powers, however, do not extend to the persecution of an accused. In fact, based on established principles, it is the AG’s paramount duty when acting as Public Prosecutor to ensure an accused is not only given a fair trial but that procedural fairness is extended at all stages of the process, including at the apex court.

Another coercive provision which adds meat to the AG’s constitutional power is Section 376(1) of the Criminal Procedure Code (CPC) which reads: “(1) The Attorney General shall be the Public Prosecutor and shall have the control and direction of all criminal prosecutions and proceedings under this Code.”

In my opinion, this provision destroys the element of accountability to the rule of law in our criminal justice system.

Both provisions need to be amended at the earliest opportunity to give the judiciary the power of judicial review.

In saying so I am not suggesting that the judiciary does not already have the power to check any abuse of prosecutorial powers. However, in my view, the apex court has yet to play its constitutional role according to the rule of law.

Article 145(3) and Section 376(1) are also in breach of many United Nations conventions and prosecutorial norms practiced both in the UK and in India.

Our judiciary, which often takes solace by importing decisions from both countries to give clout and a sense of fairness to its decision-making process, has not dealt with it yet according to its oath of office obligations.

Neither has it acted according to our constitutional framework which requires the courts not to be subservient to the laws of Parliament but to protect the public interest and not allow any arbitrary exercise of power against any individual.

In interpreting Article 145(3), the Federal Court in the case of Long bin Samat & Ors (1974) gave brutal force to the concept of absolute power.

It could have by judicial interpretation mellowed it down to what was advocated by former Lord President Raja Azlan Shah in the well-known case Pengarah Tanah v Sri Lempah (1978) where it was observed that the term “unfettered discretion” is a contradiction in terms, and that every legal power must have legal limits, failing which a dictatorship would arise.

When powers are wrongly exercised it becomes the duty of the court to intervene.

A literal reading of the Article gives the AG absolute power to institute, conduct or discontinue any proceedings for an offence.

Such a literal reading, although supported by judicial decisions of the past and forming the precedent followed to date, is in my view anathema to our criminal justice system itself.

No literal interpretation of a constitutional provision is permissible if it compromises the rule of law and undermines the oath of office of judges as well as that of the rulers who are supposed to arrest any form of arbitrary decision of the executive or its agencies.

From my early days in criminal practice, I have found the decision in Long bin Samat to be uninspiring. I also witnessed prosecutorial abuse during “Operation Lalang” when many politicians of statesman calibre were detained under the now-repealed Internal Security Act 1960.

Unfortunately, judges, in breach of their oath of office, were prepared to lend their hand to the executive, leading to a slow destruction of the administration of criminal justice itself in selected cases.

The Executive, with the support of the AG, whose role is supposed to be independent, had even convinced the court to participate in the abuse itself based on the doctrine of parliamentary supremacy (under which the courts are subservient to Parliament) with no appreciation of the applicability of the constitutional supremacy (where the courts are subservient to the constitution) doctrine.

That abuse continued in many cases, including those brought against Anwar Ibrahim and the late Karpal Singh, which I addressed in a 64-page affidavit in an action brought by Karpal’s daughter, Sangeet Kaur.

It was when I was in the judiciary that I realised how inextricably interwoven the Executive, AG’s Chambers and the judiciary were. For example, legal officers were upon graduation appointed by the government to positions in the AG’s Chambers or to sit as magistrates and assistant registrar in the courts.

The same officers would also serve in various ministries, and eventually form a large majority of judges in the judiciary. Upon retirement many go on to become heads or board members of GLCs or other corporate bodies, thereby retaining some form of nexus to the government.

Such a nexus is not found in UK and India where the separation of powers doctrine is respected.

I have no hesitation in saying that, from my observation, the “separation of powers” doctrine is an illusory concept in Malaysia. As a result, there will be no jurisprudential benefit to separating the roles of AG and Public Prosecutor if no change is made to the process of recruiting law graduates to serve the government and administration of justice.

Article 145(3) of the constitution and Section 376(1) of the CPC have recently caused many controversies in relation to unfair prosecutorial practice against certain politicians and the discharge not amounting to acquittal (DNAA) secured by others.

Political parties in recent years have complained about this as it affects their relevance and survival.

Although the government appears to be taking steps to separate the role of AG and the Public Prosecutor, this alone will not resolve the problem.

Prosecutors in the UK and in India have no absolute power. The law in those jurisdictions makes provision for the judiciary to have a say before a charge can be moved through the court system. In the UK it is well established that an abusive charge will be stayed by the court either of its own motion or on application of the parties.

In my view, integrity to the administration of criminal and civil justice can be achieved by removing the trying of facts, which is now in the hands of the judiciary, in line with the 1215 Magna guarantee given by the King of England.

This can be done by a simple and cost-effective process of introducing the “University cum Court Annexed Arbitration’ as well as bringing back jury trials for selected matters as per my concept paper presented in Singapore on “university cum court and jury mode criminal trials”.

My proposals for institutional reform can restore integrity to the administration of justice.

Can the Madani government achieve my proposed reform by removing trying of facts from the hands of the judiciary as I have advocated in a number of articles? - FMT

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.