LETTER | It is unusual that the police, in the saga of Chin Peng’s ashes, will be seeking advice from the attorney-general as to whether any offence has been committed. The criminal justice system does not intend the limbs of investigations and the prosecution to work in this manner.
The classification of cases and whether an offence has been disclosed is the prerogative of the relevant enforcement agency. Investigations commence once the investigative arm establishes that an offence has been disclosed.
The classification of a case, whether sizeable or otherwise, gives the necessary powers to investigate, which basically centres around witnesses, search, seizure and arrest. At this stage, there should be no interference from any external party, including the AG’s Chambers, until the investigator feels he has enough evidence for a prima facie case.
It is only then the chambers steps in. This is one of the most important parts of the balance of powers between the prosecution and investigative arms in any criminal justice system. Although there are overlapping, mutually inclusive powers between these two limbs, the criminal justice system is an inclination towards checks and balances.
The police should not be dependent on the AG to decide whether an offence has taken place. A 'No Offence Disclosed ' is also one of the classifications available to the police after initial inquiries. These inquiries that lead up to a specific classification are noted down as police actions.
These are to justify the said classification and is, totally, the prerogative of the police. This initial procedure must be kept strictly sacrosanct to maintain an effective balance and separation of powers between the first two arms of the criminal justice system.
Investigations that commence in the uncertainty of an offence are unprofessional and a disservice to the public, apart from infringing upon the basic rights of an individual.
In this case, it is opined that the Hat Yai agreement of 1989 on the surrender of the communists and the terms and conditions agreed upon by all parties should be strictly adhered to, honoured and respected in the right spirit. All investigations must take cognisance of this fact from the outset.
The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.