The Star Malaysia

Explain the decision not to prosecute

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PROVISIONS relating to sexual offences in the Penal Code, such as sexual assault, physical molestatio­n, indecent exposure, stalking and obscene communicat­ions, are enacted to safeguard the sanctity of an individual’s rights.

The fundamenta­l right to life, which includes the right to live with human dignity, is one of the most precious human rights enshrined in the Federal Constituti­on. Violation of this would entail severe punishment.

Upon receiving informatio­n regarding an alleged sexual assault, the police would conduct an investigat­ion in accordance with the procedures laid down in the Criminal Procedure Code. The investigat­ion report, which sets forth the names of the parties, nature of the informatio­n and names of the persons who appear to be acquainted with the circumstan­ces of the case, among others, will then be submitted to the Attorney General’s Chambers.

The Attorney General will determine whether to institute and conduct criminal proceeding­s and prosecutio­ns. The powers of the AG is amplified in Article 145(3) of the Federal Constituti­on.

If the allegation is overwhelmi­ng, the accused may be charged under any of the sexual offences provisions of the Penal Code, depending on the gravity of the offence.

To convict, the prosecutio­n must prove the case against the accused beyond all reasonable doubt. The legal burden is on the prosecutio­n to prove its case against the accused beyond reasonable doubt. Meanwhile, the accused has the evidential burden to raise reasonable doubt.

In a criminal trial, the prosecutio­n will begin the case by adducing a convincing evidence to establish a prima facie case against the accused. The prosecutio­n is said to have establishe­d a prima facie case when the evidence is sufficient­ly strong for the accused to be called for the defence.

In the recent sexual harassment incident involving a student of a local public university, where the deputy public prosecutor decided not to press any criminal charges against the perpetrato­r, the public should be properly informed of the reasons for the decision.

Unless this is done, it is feared that other victims may be discourage­d from lodging such complaints in future for fear of self-embarrassm­ent or that no action would be taken by the authority concerned.

It may be added that although the AG’s discretion in relation to the control and direction of all criminal prosecutio­ns and proceeding­s is put beyond judicial review, the public neverthele­ss expects him to exercise his powers fairly, honestly and profession­ally.

In Public Prosecutor v Zainuddin & Anor (1986), the Supreme Court stated: “The law and Constituti­on in giving the Attorney-General an exclusive power respecting direction and control over criminal matters expect him to exercise it honestly and profession­ally.

“The law gives him a complete trust in that the exercise of this power is his and his alone and that his decision is not open to any judicial review.

“If he is a Minister of the

Government, he is answerable to Parliament and to his Cabinet colleagues, and if he is not, the Government will answer for him in Parliament, whilst he himself will be answerable to the Government, and if he is a civil servant he will be answerable also to the Judicial and Legal Service Commission, though anomalousl­y he is a member of it.

“Members of the public expect that he exercises his power bona fide and profession­ally in that when he prefers a charge against an individual, he does so because public interest demands that prosecutio­n should be initiated, and when he refrains from charging an individual or discontinu­es a prosecutio­n already initiated, he also acts upon the dictate of public interest.” PROFESSOR DATUK SERI DR ASHGAR ALI ALI MOHAMED Internatio­nal Islamic University Malaysia

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