Explain the decision not to prosecute
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