This article aims to shed light on one of the weakest chains in the justice system. Contrary to popular belief, the focus is not on the judiciary. Rather, it is on the role of the attorney-general. My discussion here are all about the justice system as a whole, instead of targeting a particular individual.

This is what happen when a crime is committed. The victim or the witness will make a report to the police. The police will conduct investigations and the collected materials will be presented to a prosecutor. The prosecutor will then decide whether they want to charge the said suspect. If the answer is yes, the accused will be charged in the court and the judge will hear the case and pass a judgment to determine whether the accused is guilty.

The nature of court proceedings dictates transparency, because most proceedings and judgments are open to public access. As a result, this step of criminal procedure often attracts the most media attention. This area always has light shed upon it.

However, the other chains of this justice system are often hidden from light - namely the police department and the prosecution chamber. Since these are the chains in the system that are working behind closed doors, they are the weakest links where the abuse of power may happen easily.

I will only discuss the role of public prosecutors here.

Anything that can go wrong, will go wrong.

Attorney-general

The power to prosecute lies in the attorney-general and he is the public prosecutor (Section 376 of Criminal Procedure Code). Of course, it is in his power to appoint other persons to be deputy public prosecutors (Section 376(3)) who can carry out the prosecution on behalf of him. His power is conferred by the federal constitution in s 145(3) initiate any court proceedings for an offence, except before ‘Syariah court, native court or a court-martial’.

This power is exercisable at his discretion, which is the biggest part of the problem that I will present here.

Currently, there is not a single published prosecution guideline. The decision to prosecute is rested solely on the attorney-general or a DPP’s discretion. In this context, two possible scenarios ensue after a police investigation:

1. AG/DPP are satisfied with the evidence and exercise their discretion to charge the suspect.

2. AG/DPP are dissatisfied with the evidence and decide not to charge the suspect.

The first scenario is quite straightforward and it leads to the cases that we would normally see. Even if an accused is wrongly charged, he is entitled to a fair trial that is publicly accountable and largely transparent. I will not discuss this further.

On the other hand, the second scenario is more problematic. Hypothetically speaking, the public prosecutor can exercise their discretion NOT to charge the accused, even if there exist numerous and adequate evidences against a suspect. This is because there is no clear prosecution guideline to direct a prosecutor’s action. Therefore, a prosecutor can act as a preliminary judge to acquit a criminal in his/her discretion.

However, not all crimes are worth prosecuting. For example, a small fight between two brothers is potentially a crime, but charging them is not worth pursuing. Nonetheless, this discretion can also be abused to overlook some high-profile offence.

This is best reflected in the recent event where the attorney-general, Abdul Gani Patail, had openly claimed that the Attorney-General’s Chambers chose not to charge Ibrahim Ali with sedition because he has no ‘intent’, unlike the other 20 more people who were charged. He did not explain how he reached such conclusion, neither did he elaborate further on what makes up such ‘intent’. Not only is his decision arbitrary, it is also not reviewable.

For this reason, the power of AG can be easily abused because there is no check and balance to that power. Therefore, it is of the utmost importance that the person in this position be politically neutral to ensure his devotion to the spirit of law, fairness and justice.

Solution

One way to hold the attorney-general accountable is to place that office in the cabinet, so that he and other ministers are collectively responsible to the Parliament. However, this risks politicising the attorney-general as well, because cabinet members are typically drawn from the winning political party.

A better solution is for the Parliament to enact a law that stipulates the prosecution guideline. Although most citizens are unlikely to understand such complex matter, a prosecution guideline allows members of the Bar Council to observe the conduct of AG’s Chamber more closely.

Prosecution guidelines also exist in other common law countries, such as Australia and the United Kingdom. In Australia, every state has its own prosecution guideline stating the criteria or conditions that favour the initiation of prosecutions.

For example, in New South Wales, although the Office of the Director of Public Prosecutions has discretion over the decision to prosecute, the factors for such discretion are clearly listed in the Prosecution Guideline (Part 4). Hence, the power to prosecute is not entirely arbitrary.

Of course, it is very unlikely that the creation of a prosecution guideline in Malaysia will have any immediate force to prevent the abuse of the prosecuting power. However, it allows the legal experts in this country to keep a close eye on the business of AG’s Chamber and hold the office up to standards. In addition, it also allows the experts to bring the matters to public attention when there is an obvious violation of the prosecuting power.

CHIANG CHOON YIT is a law student at the Australian National University.