Thursday, February 27, 2014

Selective prosecution – the solution is political, not legal

Aziz Bari
OUTSPOKEN: Article 145(3) of the Federal Constitution reads: “The Attorney-General shall have power, exercisable at his discretion, to initiate, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial.”

In a great number of decisions the court has ruled that under the provision the principal legal advisor of the government as well as the chief prosecutor essentially wields “absolute power”. This means that whether or not the office should press charges and under which law is very much its choice. Such a ruling was handed down in a string of cases involving challenges put up against the government on ground of unfairness; e.g. that the office was alleged to have discriminated against government critics and the government chose to do so under a harsher law.

It is to be pointed out that law enforcement – separate from law-making – is the job of the executive or the government of the day. And law enforcement includes prosecuting. The Attorney-General, together with the police force which is part of the public service, is under the executive. This being the case there is no question of breaking the doctrine of separation of powers between the legislature, executive and judiciary. The matter exclusively belongs to the executive.

From the wording of the provision above it is clear that the Constitution gives the government liberty to decide. And while it is quite anomalous to say that such power is absolute, the court nonetheless finds it hard to allow a review. And this is the one thing that has given rise to allegations of selective prosecution; namely that when prosecution is no longer considered something that is done as a matter of course in the normal functioning of prosecution office.

The main reason the government is sometimes accused of putting up selective prosecution is the existence of the right to equal protection of the law under the Constitution. And when only a person or a group of persons is being prosecuted there exists a breach of such right. 
Under the Malaysian Constitution the equal protection right is provided for under Article 8(1). A provision to the same effect is also available under the United States Constitution: the 14th Amendment has made it a duty upon the states to guarantee equal protection to all persons under their jurisdiction.

But like in Malaysia, the claim of selective prosecution has rarely been successful in the United States. Selective prosecution has been defined by the United States Supreme Court as the enforcement of criminal law against a particular class of persons with a mind so unequal and oppressive which violates the notion of equality. Instead of using the objective standard of law the authorities use unjustifiable standard such as race, religion or other arbitrary classification. While the perception of unjust decisions prevails, selective prosecution is difficult to prove and the courts, including in the US, tend to presume that the prosecutor has not violated the equal protection provision under the Constitution. The lack of objective standard on the matter has rendered the problem political rather than purely legal. The matter becomes worse when the system is replete with archaic and undemocratic legislation like in the developing world.

Be that as it may, the power to prosecute symbolises or represents the state. But the trend, especially in the United Kingdom, is to have the power vested in the Director of Public Prosecutions. Although the Attorney-General retains the power to prosecute, the office essentially carries out a mere supervisory role. And as the holder sits in the cabinet, it is not difficult to make the government of the day answerable to parliament.

We used to have Attorney-General who sat in the cabinet, such as Tan Sri Abdul Kadir Yusof and Tan Sri Hamzah Abu Samah. In those days prosecutions were handled by the Solicitor-General, who is the second person in charge. The practice was discontinued during Tun Dr Mahathir Mohamad’s premiership in the early 1980s, starting with Tan Sri Abu Talib Othman.

Now whether or not the Attorney-General is a politician and sits in the cabinet admittedly does not solve the problems surrounding the issue of selective prosecution. Nonetheless when the person in charge could be compelled to explain there is a certain amount of control on the way the government exercises the power. Making the Attorney-General part of the cabinet would enable the holder to face questions in parliament. As it is now the Attorney-General is often hiding behind the minister in charge of legal affairs and the latter often fails to explain. Worse the public has to go through a merry go round where none of them seems to have the answer.

Another problem with us is that the power of the Attorney-General is laid down by the Constitution and this makes it difficult to have a change. For one thing we need to have a two-thirds majority to amend the provision. Until and unless the provision is changed we will continue to hit the wall when it comes to the power to prosecute; this is evident when it comes to corruption. Whatever the case, ultimately it is the provision in Article 145(3) of the Federal Constitution that reigns supreme.

Dr Abdul Aziz Bari is formerly IIUM law professor who now teaches at Unisel. He is also a Senior Fellow with IDEAS, an independent think tank, and Penang Institute owned by Penang state government.

~ The Ant Daily

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