By Lim Chee Wee[1]
The Attorney General (AG), the Public Prosecutor, promised that he will study recent high profile cases according to the law, acting without fear or favour, and acknowledged that public trust and confidence in the justice system depends on a certain amount of transparency and openness in the prosecution of cases. These declarations beg three questions – what does the law say as to how the AG should exercise his prosecutorial powers, what are the limits on such powers and what is the extent of his accountability to the public.
Article 145 of our Federal Constitution merely states that the AG shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings of an offence. However, AG has yet to disclose his policies and principles of prosecution.
In other jurisdictions such as the United Kingdom, United States of America and Australia, the prosecutors publicly disclose their prosecutorial policies. Such transparency provides certainty in prosecution and promotes public confidence in the fair and independent exercise of prosecutorial power.
The Code for Crown Prosecutors in the UK provides a useful guide. It states that prosecutors must be fair, independent and objective, neither must prosecutors be affected by improper or undue pressure from any source, and prosecutors must always act in the interests of justice and not solely for the purpose of obtaining a conviction.
The Code also provides a threshold that prosecution must consider when exercising its prosecutorial power, namely the evidential stage, followed by the public interest stage. There must be sufficient evidence to provide a realistic prospect of conviction and there must be consideration of what the defence case may be and how it is likely to affect the prospects of conviction. In terms of public interest, the more serious the offence, the more likely it is that a prosecution is required.
Based on past cases, it was previously thought that AG has absolute discretion in prosecution, in other words, his prosecutorial powers cannot be challenged (Long bin Samat & Ors v Public Prosecutor [1974] 2 MLJ 152 and Borhan bin Hj Daud & Ors v Abd Malek bin Hussin [2010] 6 MLJ 329). However, in light of recent developments, this is no longer the law.
The current jurisprudence is that the public prosecutor’s prosecutorial decisions can be questioned in a court of law. In a celebrated High Court decision, Justice Vazeer Alam decided that where the prosecutorial decision of AG is based on some irrelevant consideration, exercised unlawfully or the prosecutorial power is abused for some improper purpose, then that decision can be challenged, and the courts have a duty to render assistance to an individual aggrieved by that decision (Rosli bin Dahlan v Tan Sri Abdul Gani bin Patail & Ors [2014] MLJU 559).
The then Chief Justice of Singapore, Chan Sek Keong CJ similarly held in the Singapore Court of Appeal that the courts are not powerless under the law to check or act against an abuse or unconstitutional exercise of prosecutorial power. The power must be exercised in good faith for the purpose it is intended, i.e., to convict and punish offenders, and not for an extraneous purpose (Law Society of Singapore v Tan Guan Huat Neo Phylis [2008] 2 SLR 239).
Lord Diplock in giving the advice of the Privy Council in Teh Cheng Poh v Public Prosecutor said that decisions whether or not to prosecute in a particular case for a particular offence should not be dictated by some irrelevant consideration.
The UK House of Lords (now Supreme Court) in R v Purdy, decided that the Director of Public Prosecutions (Malaysia’s equivalent of AG) is under the obligation to clarify factors that will be taken into account in exercising his prosecutorial discretion and in that case he was ordered to issue a policy identifying the facts and circumstances that will be taken into account when deciding whether or not to consent to a prosecution in respect of assisted suicide.
Accordingly, our AG in exercising his prosecutorial power cannot consider as relevant the power, office, influence, nor friendship of any suspect in any case of wrongdoing.
AG is our custodian of prosecutorial power and our guardian of the public interest. He is the lawyer of the State, and it follows, the society. That is why he is known as the Public Prosecutor, he is prosecuting for and on behalf of us, the public.
Malaysians view corruption as a serious problem afflicting our country[2] and we are shamefully named in Foreign Policy’s Worst Corruption Scandals of 2015. It would be fair to say Malaysians are in despair over corruption and are sceptical whether there will be independent and impartial prosecution.
Therefore, if AG were to decide differently from the recommendations of any law enforcement agency in high profile corruption cases, he is obliged to state publicly detailed reasons for the different position he is taking, especially if he decides not to prosecute any suspect believed to be involved in any wrongdoing in any high profile cases.
[1] Advocate & Solicitor of the High Court of Malaya, former President of the Malaysian Bar and Co–President of the Centre For A Better Tomorrow.