Public accountability of the public prosecutor in Malaysia — Puthan Perumal

JANUARY 26 — An important part of public confidence in justice is confidence in the arrangements for prosecuting offenders. People want the assurance of a system which is fair, objective and effective; that is as transparent as possible; and that takes proper account of the needs of victims. It has been held by courts around the world that corruption amounts to violation of human rights and leads to economic imbalance. It can safely be said that persons that cause a nation to suffer economic imbalance due to corrupt practices are actually also violating the human rights of the citizens of that nation.

It goes without saying that fair, efficient and effective arrangements for prosecuting people suspected of committing criminal offences are of fundamental importance in a modern justice system.

Prosecutorial decisions should be insulated from any risk of political interference.

Prosecutors are to be independent of the investigative agency, of the executive, of the victim and of the judiciary. Indeed, there should also even be a degree of independence within the organisation, so that there is not ‘ a single thought process’ but individual prosecutors make the recommendations they think best, even if these are overruled up the line.

Independence is an essential feature of the proper exercise of prosecutorial discretion. But the notion of independence cannot exist alone: it must co-exist with the notion of accountability. Indeed, independence and accountability are not opposing concepts: they work together. You cannot have the one without the other.

Why is accountability such an important principle in the prosecutorial context? The reason is that that is the only meaningful way to maintain and enhance public trust and confidence in the administration of criminal justice.

It is one thing to say that justice must be dispensed without regard to political consequences, or that the decision to prosecute must never be arbitrary or informed by improper considerations. However, if no one is seen to be held accountable for the exercise of prosecutorial discretion on the basis of publicly available criteria, how can the public ever have any assurance that decisions are not tainted or improper?

Accountability involves rendering an account to someone, on how and how well one’s responsibilities are being met, on actions taken to correct problems and to ensure they do not reoccur. It can be described as answerability, a key aspect of accountability which includes the duty to inform and explain.

It is my humble opinion that the time has certainly come for prosecutors to explain what decisions were made and why and how these decisions were made. This is particularly true since prosecutors are vested with such broad discretion and decision-making authority in carrying out their duties. Their actions have a direct impact on the lives of individuals who come in contact with the criminal justice system.

But explanations are not enough. Being accountable also implies taking corrective actions where appropriate. Both the decision to charge and the decision to prosecute must be principled and made without any improper influence, political or otherwise.

Clarity and transparency are therefore essential to dispel an unfounded perception of political interference or influence. Indeed, it will always be difficult to explain a decision that is not principled. The secrecy of a process will often generate speculation of impropriety. Conversely, transparency will support effective and meaningful public accountability. Thus, the public can see not only how and why prosecutors do things, but can also measure their actions against the principles they espouse.

The more the prosecutors make the exercise of discretion a matter of public record, the more likely the decision-making process will be seen as responsible and accountable, therefore enhancing public confidence.

Decisions relating to prosecutions should be made on the basis of evidence, the law and public interest. It is important to stress again that these decisions are not to be influenced by improper considerations such as partisan politics or by the public’s desire that someone, anyone, be charged. Confidence in the administration of criminal justice requires a measure of public accountability in the prosecution process. Like any other public agency, the performance of the prosecutions service is under public scrutiny.

As far as the prosecutors are concerned, in any case, conducted on proper principles, there is no case to win and no case to lose.

As a result, where cases are not perceived to have been conducted effectively, when they collapse under their own weight, when they are portrayed in the press as “show trials” that have been undertaken at great public cost and with little apparent public benefit, then the public’s respect for the administration of justice may be severely undermined.

Everyone in the government must be accountable for their actions: the greater the impact of the decision on the public, the greater the need for public accountability.

*Puthan Perumal is an advocate and solicitor.

** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail Online.