At present, the Attorney-General, who is also the public prosecutor, is empowered by Article 145(3) federal constitution to institute criminal proceedings could under this same Article, together with section 254 Criminal Procedure Code, discontinue or withdraw any criminal proceedings that are before the court.
If there had been no prima facie case, why even institute criminal proceedings?
To seek discontinuance of criminal proceedings in this way by the public prosecutor, is an utter waste of public funds, and the court is seen as a circus by the public. As it is now, the Attorney-General as the public prosecutor is more powerful than the court. Discontinuing criminal proceedings is the prerogative of the judiciary, not that of the prosecutor. When the court decides that the criminal charges and prosecutorial effort has no merit, it is the court that decides as a judicial function under Article 121 Federal Constitution.
This discontinuing power of the Attorney General has the potential to shake the confidence of the Malaysian public and investors on the independence of the Attorney-General Chambers and the Judiciary from the Executive.
The Attorney-General being appointed by the King upon the advice of the prime minister of the government of the day makes this tenure of office constitutionally insecure. This admittedly is very disturbing for the administration of justice. It has been observed lately that with each new government, Malaysia has a new Attorney-General, replacing the ones that had been appointed by the King during the previous government.
The power to discontinue the criminal proceedings under Article 145(3) federal constitution is in fact, is against the concept of separation of powers. Once a case is instituted before the court, the court takes control and the prosecution should not be allowed to withdraw or discontinue the case based on its whims and fancies, but, should leave the matter for the court to decide whether there are grounds for the case to be withdrawn upon argument by defence counsel.
When application is made to withdraw or discontinue the criminal proceedings, the prosecution has a duty and a right to object to the application made.
Parti Bumi Kenyalang(PBK) therefore, calls Parliament to remove the powers entrenched in Article 145(3) of the federal constitution, to institute and to discontinue or withdraw criminal proceedings in court by the public prosecutor. This discretionary power had recently seen many high-profile cases involving powerful politicians and some public figures walk free.
The power to institute criminal proceedings should be with the investigating agencies, not the Attorney-General because investigating agencies wish not for their work come to waste when cases with strong evidence are not prosecuted if the public prosecutor exercises his discretion not to prosecute the case.
There should also exists the office of Director of Public Prosecutions, whose tasks besides advising the investigating agencies of the law and evidence collected should also include the authority to prosecute the case once the case is instituted before the court. Again, discontinuing or proceeding with a case rests with the judiciary and not the Director of Public Prosecutions.
The Federal Constitution is the supreme law of the land, and therefore it must retain its supremacy even if it requires amendment to comport with the current socio-economic and geo-political scenarios.
The supreme law of the land is a veritable reflection and reminder to the world at large as to what Malaysia stands for as a safe and secure haven for its citizens, foreign investors and those seeking to make Malaysia their second home.
VOON LEE SHAN