The phrase absolute power corrupts absolutely is a popular proverb that has been around for centuries. Its powerful message speaks to the dangers of giving one person too much power and control. The proverb highlights the idea that when people are given too much power and control, they can become corrupt and abuse their position for personal gain. This can lead to negative consequences for the people they are supposed to serve, as well as for society as a whole.

Absolute power is against the doctrine of separation of power and this is affront to democracy as this disallows check and balance in the administration of justice and government or in any institution.

Article 145(3) federal constitution gives too wide a power to the public prosecutor to withdraw or discontinue criminal proceedings before the court should be amended. When a criminal case is withdrawn from prosecution after the case been filed or been prosecuted half-way, the judiciary is turned into a circus and the judges look like clowns. This can undermine the confidence of the public in the administration of justice. This is not healthy to democracy and our justice system because the innocent judges could be painted as corrupt, incompetent or both. The judges are defendless when unwarranted, malicious and scandalous accusations are leveled against them.

What the public fails to understand is that the person responsible for that decision is the public prosecutor and not the Courts. It is often the Courts that are chastised for such decisions and this erodes public confidence in the judicial system.

We need to correct our system to regain public confidence.

Once the public prosecutor has filed the criminal case before the court, criminal proceeding is before the court and the court therefore, takes cognizance of the case and should be seized with judicial powers to proceed with the case until the end of the trial to determine the disputes between the parties before the court in accordance with the law. The public prosecutor should not with whims and fancies be allowed to withdraw the case and court should be allowed to proceed with criminal proceedings until the end of the matter.

It would make it a mockery of the well-established concept of judicial independence to determine disputes if the public prosecutor is allowed to withdraw a case any how without good reasons. Withdrawal or discontinuance of a criminal proceeding should only be allowed if the court is satisfied with the reasons given by the public prosecutor. The court should be given powers to call and hear views of lawyers or the members of the Malaysian Bar, whether or not the public prosecutors’ move to withdraw or discontinue the criminal proceeding is justified. As the law now stands, there is no need by the public prosecutor to give reasons once the public prosecutor decides to withdraw a case from prosecution.

Since judicial power of the Federation is vested in the courts, it should be manifestly clear the power referred to in Article 145(3) federal constitution only relate to the prosecution and not the trial of criminal proceedings. In exercising its inherent powers on a matter in dispute before it, the court should not be denied to have inherent powers to order the trial to continue and if this power is exercised, this should not be seen as fettering the powers of the public prosecutor under Article 145(3) federal constitution to institute, conduct and discontinue criminal proceedings.

As the law now stands, the court is curtailed or restrained to exercise its general and inherent judicial power to do justice when the public prosecutor withdraws the criminal case from prosecution and this should not be allowed.

VOON LEE SHAN
PRESIDENT, PARTI BUMI KENYALANG
19 JANUARY 2024.