Prosecutorial immunity: a review of Rosli Bin Dahlan v Tan Sri Abdul Gani Bin Patail & Ors
Article 145(3) of the Federal Constitution and s 376(1) of the Criminal Procedure Code conferred on the attorney general, the public prosecutor, the power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence. The prosecutorial discretion includes the...
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| Format: | Article |
| Language: | English |
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LexisNexis
2015
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| Online Access: | http://irep.iium.edu.my/42294/ http://irep.iium.edu.my/42294/ http://irep.iium.edu.my/42294/1/Ashgar_Article_MLJ_2015.pdf |
| Summary: | Article 145(3) of the Federal Constitution and s 376(1) of the Criminal Procedure Code conferred on the
attorney general, the public prosecutor, the power, exercisable at his discretion, to institute, conduct or
discontinue any proceedings for any offence. The prosecutorial discretion includes the decision on whether
to commence prosecution against a suspect, and if so, the possible charges against him, whether to
discontinue criminal proceeding, and whether to appeal against the acquittal of the accused or against the
sentences passed by the court. The discretion vested in the attorney general above is unfettered and it is not
open to the court to interfere or question the discretion. In relation to the above, this article considers the
issue of whether a civil suit lies against the attorney general or his deputies for malicious prosecution or
misfeasance in public office when the attorney general or his deputies had engaged in prosecutorial
misconduct or abuse of prosecutorial power. For example, where the public prosecutor had knowingly
manufactured the evidence, coerced witnesses into giving false testimony, where the charge was politically
motivated or by other improper motives. In other words, whether the prosecutorial immunity enjoyed by the
public prosecutor is an absolute or qualified immunity. The discussion is based on the recent High Court
decision in Rosli bin Dahlan v Tan Sri Abdul Gani bin Patail & Ors. It is an undisputed fact that if the public
prosecutor can be subjected to lawsuits for the decision he makes, he may become reluctant to file charges
except in the most obvious cases. Apart from the above, it could also raise fear that it could bring a wave of
frivolous filings that may clog up the court system. |
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