Professional Documents
Culture Documents
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J.LL.J. Edwards, The Law Officers of the Crown (1964). The office of the Director of
Public Prosecutions was constituted in 1879 by Act of Parliament (Prosecution of Offences
Act). He is subject to the directions of the Attorney-General but is otherwise independent.
For Singapore, see Tan Boon Teik, The Attorney-General [1988] Malayan Law Journal
lviii.
Denning MR in AG ex rel. McWhirter v I.B.A. [1973] 1 QB 629.
See also a statement made by Sir Hartley Shawcross, a former English Attorney-General,
which is widely quoted, explaining the discretionary powers of the Attorney-General in
matters of criminal prosecution. It is reproduced in part in Sir Kenneth Roberts-Wray,
Commonwealth and Common Law (1966) pp 351356.
8 S.Ac.L.J.
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Though efforts have been made to subject the discretion over prosecutions
exercised by the Attorney-General to judicial control, these have generally
resulted in failure. In Connelly v DPP,9 the position of the DPP was that
if there was an abuse of the power to prosecute, this abuse was for the
Crown to correct and not a matter for the courts. An abuse of the process
of private prosecutions could be corrected through the Attorney-General
entering a nolle prosequi. Lord Devlin responded to this proposition thus:
The fact that the Crown has, as is to be expected, and private
prosecutions have (as is also to be expected for they are usually
public authorities), generally behaved with great propriety in the
conduct of prosecutions has up till now avoided the need for any
consideration of this point. Now that it emerges, it is seen to be one
of great constitutional importance. Are the courts to rely on the
executive to protect their process from abuse? Have they not
themselves an inescapable duty to secure fair treatment for those
who come or are brought before them? To questions of this sort
there is only one possible answer. The courts cannot contemplate for
a moment the transference to the executive of the responsibility for
seeing that the process of the law is not abused.
In Lord Devlins view, the matter concerned separation of powers and
became one of constitutional significance, involving individual liberties.10
The courts, in his view, become the bulwark against the abuse of the
executive discretion to prosecute and, like any other executive discretion,
the possibility of the control of the discretion of the Attorney-General to
prosecute remains, though confined to extreme circumstances of abuse.
But, if any doubt existed that the speech of Lord Devlin recognized the
existence of a wide power of controlling the institution of prosecutions in
the courts, it was soon dispelled in DPP v Humphreys11 . Viscount Dilhorne,
himself a former Attorney-General, referring to the power of the courts
said:
If there is the power to stop a prosecution on indictment in limine,
it is in my view a power that should only be exercised in the most
exceptional circumstances a judge must keep out of the arena. He
should not have to appear to have any responsibility for the institution
of a prosecution. The functions of prosecutors and of judges must not
[1964] AC 1254. The issue was whether a person acquitted of murder could plead autrefois
acquit to a charge of robbery arising from the same facts.
10 Lords Morris and Hodson, who also delivered speeches in the case, did not share this
view. But, Lords Reid and Pearce supported Lord Devlin and saw in the plea of autrefois
acquit itself an inherent power to protect the courts process from abuse. Lord Hodson
cautioned that the view advocated by Lord Devlin was not based on any guiding principles
according to which the courts could act in deciding that the prosecution was an abuse of
process and would depend on the subjective view of each judge.
11 [1977] AC 1.
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8 S.Ac.L.J.
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15 A general notion of abuse of process has been developed in more recent times by the
English courts. There is nothing to suggest that this notion will be used to curtail the
powers of the Attorney-General. See for the recent cases, Elguzouli-daf v Commissioner
of Police of the Metropolis [1995] 1 All ER 834.
16 (1980) 32 ALR 449.
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England and that they were prerogative powers the exercise of which could
not be reviewed by the courts.17 The judgment also gave a policy reason
why courts should not concern themselves with the discretion of the
Attorney-General over prosecutions. It pointed out that it would be
undesirable that the court, whose ultimate function it is to determine the
accuseds guilt or innocence, should become too closely involved in the
question whether a prosecution should be commenced.18
But, the judgment kept alive the possibility of the courts interfering with
the prosecution in circumstances of abuse of process. The judges reviewed
the recent English cases such as Connelly and Humphrys and on the basis
of these cases, held that in an appropriate case, the court could interfere
in order to prevent an abuse of process.
Wilson J who also wrote a judgment in the case conceded that there was
a jurisdiction in the courts to stop criminal proceedings when such an
action is necessary to deal with an abuse of process but that this power was
to be reserved for use in exceptional cases. He was more inclined to the
view that powers exercised by the Attorney-General were unreviewable by
the courts. He observed:19
In this, as in other aspects of the administration of the criminal
justice system the courts and the community must rely heavily upon
the integrity of the Attorney-General for the faithful discharge of the
prerogatives and privileges of his high office, leaving his actions to be
questioned, if at all, in Parliament.
The Australian judicial discussion seems inclined towards asserting the
primacy of the discretion of the Attorney-General in instituting and
maintaining criminal prosecution and shows a greater fidelity to the fact
that the origin of the power lies in the prerogatives of the Crown. Yet,
there is retained a residual power in the courts to interfere with the exercise
of such powers, when they indicate an abuse of the process of the courts
or where there is an unfairness to the accused involved in the exercise of
the discretion.20 But, the judgment is unhelpful in that it does not identify
17 The judgment identified a cluster of powers as included in the prerogative powers exercised
by the Attorney-General. Besides the power over prosecutions, they included the power
to enter a nolle prosequi and the power to grant or refuse a fiat in connection with a
relator action. London County Council v Attorney-General [1902] AC 165; Gouriet v
Union of Post Office Workers [1977] AC 435. The judgment cited with approval the view
of Edwards in the Law Officers of the Crown p 289 that in all these instance, embracing
both civil and criminal proceedings the Attorney-General is accountable not to the courts
but to Parliament for the manner in which he discharges his discretionary authority.
18 32 ALR at p 458.
19 32 ALR at p 475.
20 There is extensive discussion in the judgments in Barton whether the bypassing of the
committal proceedings amounted to such unfairness.
8 S.Ac.L.J.
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21 Barton is discussed by Edwards, The Attorney-General, Politics and the Public Interest at
pp 121123. In Australia, most of the later cases have involved ex offficio indictments by
the Attorney-General. In some cases, the courts have held that the use of such indictments
are an abuse of process.
22 (1977) 35 CCC (2d) 129.
23 Re Balderstone and the Queen (1983) 8 CCC (3d) 532.
24 Regina v Moore (1986) 26 CCC (3d) 474 at p 476.
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continue with the case despite the parties agreement to compound it,
which was the situation considered in Singapore by Chief Justice Yong in
PP v Norzian bin Bintat.
Once a criminal prosecution has been instituted and the courts have seized
jurisdiction over a matter, the discontinuation of the proceedings by the
prosecutor is not permitted by the courts unless good grounds are advanced
for such a discontinuation. Despite the fact that s.321 seems to give an
absolute discretion to the prosecutor to withdraw from the trial and thereby
discontinue proceedings, the courts have held that consent for such
discontinuation by the trial court is necessary. This view indicates that the
courts have a residual power to oversee the exercise of his discretion by
the prosecutor. But, the courts have been careful in ensuring that a delicate
balance is maintained between the trial judges right to oversee the exercise
of the discretion and the right specifically given to the prosecutor to
discontinue proceedings. These cases give an insight into the attitude of
the Indian courts to the issue of the review of the prosecutorial discretion.35
There is a definite suggestion in them that once the charge has been laid
before the courts, the courts will thereafter oversee any discretion which
the prosecutor exercises over the proceedings.36 Where he seeks to withdraw
the charge against the offender, the courts will ensure that he exercises this
discretion on the basis of adequate grounds and as a free agent. It is
interesting to look at some of the cases in order to understand the nature
of the supervisory powers over prosecutorial discretion which the Indian
courts have claimed. They stand in stark contrast to the positions in England,
Australia and, to a lesser extent, Canada as there is only a token recognition
of the primacy of prosecutorial recognition in these cases. Unlike the
Criminal Procedure Code in Singapore, there are also no clear provisions
which spell out the power of the Attorney-General to enter a nolle prosequi
in the Indian Code. The prosecutorial discretion prior to the bringing of
charges clearly exists but once charges are brought and the jurisdiction of
the courts are engaged as a result, the supervisory jurisdiction of the courts
also come into play and the extent of the prosecutorial discretion is
correspondingly reduced.
The law that is stated in the Indian cases could be summarised as containing
a series of propositions. They have arisen in cases which deal with the
power of the prosecutor to withdraw a charge stated in s.321. This is the
only provision in the Indian Code which deals with the power of the
prosecutor to withdraw charges whereas there are other provisions in the
35 As is usual in India, there is a colossal amount of case law. It would be sufficient to look
at only the more recent decisions of the Indian Supreme Court.
36 See Rajender Kumar Jain v Slate (1980) 3 SCC 435 where the earlier authorities are
discussed. Also see Sheonandan Paswan v State of Bihar (1983) 1 SCC 438; Ravi Raman
Prasad v State of Bihar (1994) 2 SCJ 513.
8 S.Ac.L.J.
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Singapore Code which deal with this power in more absolute terms.37 The
first proposition is that the Public Prosecutor has an absolute discretion as
to whether or not to institute proceedings. This proposition is no different
from that accepted in other common law jurisdictions. The second
proposition is that once the prosecution has been instituted, the prosecutor
has a discretion as to whether it should be continued or not. He may
withdraw it at his discretion. The Indian Supreme Court recognises that
this is a purely executive discretion which may be exercised for a variety
of grounds which it has identified. The good reasons for using s.321 are the
lack of evidence to support a conviction or the appearance of fresh evidence
which shows the innocence of the accused. But, it may include such other
factors as the political repercussions of the prosecution which may not be
easy to control. If the prosecution of a religious or other leader for a trivial
offence may lead to widespread riots, then, the withdrawal of the trial may
be an easier way out of the problem for the executive than deal with those
riots. In a volatile country, these factors, the Court has recognised, are for
the executive to assess. It goes beyond the judicial function to consider the
merits of such factors. But, and this is the third proposition, the prosecutor
must do so as an honest prosecutor would without being influenced by
extraneous considerations such as political pressure or favouritism exerted
on behalf of the accused. Where there is evidence to show that the discretion
of the public prosecutor had been influenced by such extraneous
considerations, the courts will interfere and ensure that the prosecution is
not withdrawn and that evidence continues to be presented to the court so
that it may determine the guilt or the innocence of the accused.
None these propositions are of significance to the precise point involved in
PP v Norzian bin Bintat38 which was whether the public prosecutor can
continue to maintain a prosecution even where the offence is compoundable,
parties had agreed to compound it and the court is in agreement with the
parties that the offence should be compounded. If one were to look at the
propositions suggested by the Indian Supreme Court, such a matter would
fall exclusively to the decision of the prosecutor. It would be categorized
as an executive discretion over which the courts should not exercise control.
But, it could equally be credibly argued that once the prosecutor had
invoked the jurisdiction of the courts, the courts have a supervisory
jurisdiction which they could exercise and that they could ensure that
proceedings which may be vexatious in nature are not maintained. There
is an element of abuse of process reasoning involved in such an approach
but the use of the process of the courts is a matter for the courts and it
would be difficult to deny them this supervisory function once their
jurisdiction has been engaged. The Indian decisions indicate little guidance
on the point.
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6. Malaysian Law:
Malaysian law on the point is closer to Singapore law and introduces a
fresh element into the picture which is not found in Indian law. The fresh
element is that the Malaysian Constitution spells out the power which
the Attorney-General has over criminal prosecution. The Singapore
Constitution has the same provision. The Indian Constitution which to a
large extent is the basis for the statement of the office of the AttorneyGeneral in the Constitutions of Malaysia and Singapore does not, however,
contain an express provision relating to the power of the Attorney-General
over criminal prosecutions. Article 145(3) of the Malaysian Constitution
reads:
The Attorney-General shall have power, exercisable at his discretion,
to institute, conduct or discontinue any proceedings for an offence,
other than before a Muslim court or a court-martial
Section 376(i) of the Malaysian Criminal Procedure Code reiterates this
power of the Attorney-General. It provides for the office of the Public
Prosecutor and states that the Attorney-General shall be the Public
Prosecutor. It reads:
The Attorney-General shall be the Public Prosecutor and shall have
the control and direction of all criminal prosecutions and proceedings
under this Code
It must be kept in mind that the office of Public Prosecutor in the various
Commonwealth jurisdictions vary. In India, this office seems to have been
introduced by the Indian Criminal Procedure Code and the Indian office
has no links whatsoever with the Federal Attorney-General or the State
Advocate-General. It is attached to each High Court and the officer is
appointed by the government of the state in consultation with the High
Court. In practice, it is a political office, the Public Prosecutor appointed
by a government resigning when that government goes out of office. The
Indian office seems to have preceded the creation of such offices in other
parts of the Empire.39 In England, the corresponding office is that of the
Director of Public Prosecutions. This office was created by statute in 1879
and he is subject to directions by the Attorney-General. In Malaysia and
Singapore, the Public Prosecutor is the alter ego of the Attorney-General.
In these states the office was created in 1892 and one may conjecture from
the proximity in time that the Public Prosecutor in Singapore and Malaysia
was more approximate to the English Director of Public Prosecutions and
that the office was created merely for organisational purposes. The office
in England, Malaysia and Singapore are not political offices. These
differences make the approximation of Indian law with the law in Malaysia
and Singapore result in inexactitudes in matters involving official functions.
39 An early case in which the nature of the office was considered was Kashinath Dinkar
(1871) 8 BHC (Cr.C.) 126, 153.
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40 Abdoolcader J in Public Prosecutor v Datuk Harun bin Haji Idris [1976] 2 MLJ 116 at
p 119.
41 Tan Sri Haji Abdul Kadir bin Yusof, The Office of the Attorney-General, Malaysia
[1977] 2 MLJ xvi.
42 Ibid. at p xx.
43 [1974] 2 MLJ 152 at p 158.
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49 Tan Boon Teik, The Attorney-General [1988] MLJ lvii. The Crown Suits Ordinance,
1876 stated these powers. The main difference, according to Mr. Tan, was that in Singapore,
the Attorney-General is not a political appointee. He pointed out that the similarity
between the offices was affirmed in Khoo Sian Tean v Attorney-General referred to in
Braddel, The Law of the Straits Settlements (Vol. 1, 1931) p 132. Mr. Tan referred to the
exact analogy between the A.-G.s discretion in instituting criminal prosecutions and the
institution of proceedings to enforce public rights. The role of the Attorney-General as
the guardian of the public interest was stressed in the article.
50 [1960] 26 MLJ 152.
8 S.Ac.L.J.
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51 The judge placed reliance on dicta in Indian cases which emphasised the role of the
Crown as the guardian of justice and the public interest.
52 [1988] 3 MLJ 397.
53 It reads: The Attorney-General shall be the Public Prosecutor and shall have the control
and direction of criminal prosecutions and proceedings under this Code.
54 Article 35(8) is in the same terms as Article 145(3) of the Malaysian Constitution and
provides that the Attorney-General shall have power, exercisable at his discretion, to
institute, conduct or discontinue any proceedings for any offence.
55 [1995] 3 SLR 462.
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58 The point, it is submitted with respect, is missed in the judgment which contains the
statement: No doubt, the Indian Criminal Procedure Code did not appear to have a
provision similar to our s.336, but this did not matter, for it was never controversial that
the Attorney-General had supervision over all prosecutions.
59 But, the Chief Justice said that the appeal does not in fact raise a constitutional point.
PP v Norzian bin Bintat [1995] 3 SLR 462 at p. 468.
60 [1976] 2 MLJ 116.
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proceedings without any result. Such termination did not mean that the
accused could not be prosecuted again. In Indian and Singapore law, the
prosecutor could terminate proceedings but the order that the court makes
could be an acquittal or a discharge, the former being capable of supporting
a plea of autrefois acquit in the event of a future charge. In all these
instances, it is clear that the court has a control over the proceedings. In
England, this was not so. Except through the amorphous notion of abuse
of process which is of recent origin and of uncertain scope, the English
courts have not sought to claim the power to override the discretion of the
Attorney-General.
What has happened in Singapore and Malaysia is that the office of the
Attorney-General with powers analogous to the English office has been
created by the Constitution. It has been superimposed on a system of
criminal procedure based on the Indian system which, in turn, was created
without having an Attorney-General with plenary powers of overseeing
criminal prosecutions. The conflict is inevitable in this setting and PP v
Norzian bin Bintat61 is but a manifestation of that conflict. The outcome to
the conflict depends on which aspect a court chooses to emphasize: the law
based on the introduction of the office of the Attorney-General or the law
based on the Indian Criminal Procedure Code. This is an unsatisfactory
situation which should be resolved.
8. Conclusion
The problem is to resolve the conflict stated in the last paragraph. The
office of the Attorney-General has been introduced by the Constitution.
The intention was to introduce an office which was in all ways similar to
that which exists in England. If this be so, then the law which is inconsistent
with the constitutional provision must be interpreted in a manner which is
consistent with that constitutional provision. Article 162 of the Singapore
Constitution itself requires such a course. This seems to be the way in
which the Malaysian courts have reconciled the conflicts which arise between
the constitutional provision concerning the Attorney-General and the
provisions in the Criminal Procedure Code. Such conflicts are bound to
arise simply because the office of the Attorney-General modelled on the
English office with plenary powers over criminal prosecution has been
superimposed on a system of criminal procedure based on the Indian system
which did not recognise an office with such extensive powers over criminal
prosecution. The Criminal Procedure Code requires revision in the light of
this constitutional provision. In the absence of such revision, the courts
should adopt an interpretation which gives primacy to the Constitution,
which represents the highest law of the land.
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Such a conflict arises also in the situation in PP v Norzian bin Bintat where
the Public Prosecutor wishes to continue prosecution but the Criminal
Procedure Code permits the composition of the case with the consent of
the court. The proper course to adopt in a case where the parties agree to
compound but the Public Prosecutor is unwilling to do so is for the court
to withhold consent to the composition on the ground that the material
and deciding factor is the unwillingness of the Public Prosecutor to agree
to the composition. The Attorney-General as representing the executive is
entrusted with the function of deciding on such matters by the Constitution
and courts must interpret their powers regarding the compounding of
offences as consistent with such powers by agreeing with the views he
states in court on whether or not to permit composition.
M SORNARAJAH*
*LL.M. (Yale), Ph.D, LL.D. (London). Faculty of Law, National University of Singapore.