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KUCHING, Aug 22: Parti Bumi Kenyalang (PBK) calls on Parliament to amend Article 145(3) of the Federal Constitution to remove the Attorney-General’s authority, who also serves as the public prosecutor, to discontinue or withdraw ongoing criminal proceedings within the courts.
Its president Voon Lee Shan said the power to discontinue criminal proceedings as vested in Article 145(3) contradicts the principle of the 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.
“Rather, this decision should be left to the court’s discretion, taking into consideration grounds and arguments from the defense counsel. Discontinuing criminal proceedings is the prerogative of the judiciary, not that of the prosecutor,” he argued in a statement today.
As for when the court determines that the criminal charges lack merit and prosecutorial efforts are unfounded, Voon said the court exercises this authority as a judicial function under Article 121 Federal Constitution.
However, he added, when application is made to withdraw or discontinue the criminal proceedings, the prosecution has a duty and a right to object or contest the application.
Voon asserted that the Attorney-General, holding the position of public prosecutor, is more powerful than the court.
He further alleged that this discretionary power had recently seen many high-profile cases involving powerful politicians and some public figures walk free.
Voon expressed concerns about the constitutionally insecure nature of the Attorney-General’s tenure, given their appointment by the King on the advice of the Prime Minister of the ruling government.
“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,” he said of the discontinuity in the terms of those appointed to this critical role.
Emphasising that the authority to initiate criminal proceedings should rest with investigative agencies rather than the Attorney-General, Voon underscored that these agencies would not wish their efforts to be in vain when cases with compelling evidence remain unprosecuted due to the public prosecutor’s discretion.
“If there had been no prima facie case, why even institute criminal proceedings?” he questioned.
Voon also proposed the establishment of the Director of Public Prosecution Office, with responsibilities encompassing not only advising investigating agencies on legal matters and gathered evidence, but also possessing the authority to prosecute cases once they have been brought before the court.
“However, the decision to continue or dismiss a case should rest with the judiciary and not the Director of Public Prosecution,” he reiterated.
As the Federal Constitution is the supreme law of the land, Voon asserted that it must retain its supremacy even if amendments are needed to align with the current socio-economic and geo-political circumstances.
“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,” he added. — DayakDaily
