Lawyers divided over whether post-conviction representations are constitutional

 

Under Article 145(3), the Attorney-General, who acts as the public prosecutor, is given a discretion to discontinue any criminal proceeding.

PETALING JAYA: Lawyers are divided over whether the public prosecutor is acting constitutionally when considering representations to withdraw or reduce charges after an accused has been convicted of a criminal offence.

One lawyer said it is improper to use an appellate court to rubber stamp a private agreement reached with the Attorney-General (AG) – acting in his capacity as public prosecutor – after a trial court has ruled in a case.

“Allowing the practice may be tantamount to usurping judicial power,” the lawyer told FMT on condition of anonymity, adding in his view the practice should cease immediately.

The lawyer was commenting after reports emerged of the Court of Appeal agreeing to applications for murder and trafficking charges to be substituted at the appellate stage with culpable homicide and possession, respectively, despite the prosecution having secured convictions in the courts below.

The senior lawyer said the right of an accused to make representations should only be for the purpose of seeking a withdrawal or reduction of charges, either before the trial commences or at any time before the trial judge has ruled after the close of the defence case.

“Only under such circumstances, can the public prosecutor rely on Article 145(3) of the Federal Constitution which allows him to use his discretion to discontinue a proceeding,” the lawyer said.

The lawyer also said the correct procedure should be that a deputy public prosecutor should come to court and concede to the appeal.

“In a post-conviction scenario, the proper course is to let the appellate bench decide whether the trial judge had made a correct finding in law and on the facts to warrant appellate intervention,” he said.

Lawyer S Raam Kumar said it is quite often unclear when an appellant pleads guilty to a reduced charge whether the judgment of the trial judge is quashed.

“Sometimes, when an appellant pleads guilty to a lesser offence, the bench does not make a clear declaration whether the trial judge’s findings are set aside,” he said.

Lawyer Salim Bashir said there is no written law to govern the practice of making representations. Its use has been established through practice over a long period of time, he said.

“Properly, representations can be made if new evidence emerges after conviction. In such cases, the public prosecutor, as the guardian of public interest, is duty bound to concede,” said Salim, a former Malaysian Bar president.

Senior lawyer Hisyam Teh Poh Teik disagreed that an appellate court merely acts as a rubber stamp when informed that the prosecution has accepted representations.

“It means that the public prosecutor concedes that there are appealable errors, either in the process of trial or in the judgment. In any event, the concession is always done with leave of court,” he added.

Lawyer N Sivananthan said it is important to understand that the public prosecutor will agree to the representation made only if he is also of a similar view that there have been errors in the grounds of judgment of the trial judge.

“A panel can reject any agreement made if it is contrary to law. The judges would have read the appeal records and the submissions filed by both parties before the hearing date,” he said.

Sivananthan said there is absolutely nothing unconstitutional in the process as representations only serve to expedite an appeal. - FMT