The Elephant in the Room – The Question of Prosecutorial Discretion

The headlines in recent days have been dominated by the ‘Monica Baey saga’ – the focus in particular on the inadequacy of actions in handling cases of sexual misconduct in an educational establishment such as NUS. One of the more prevalent but seemingly mysterious issues raised was the failure of the Attorney-General to charge the perpetrator in Court – the Singapore Police Force (“SPF”) have since come out in an attempt to clarify thisand explain that comparisons to a case involving a 23-year-old man from Republic Polytechnic jailed for 10 weeks for filming a woman showering were misplaced.

What many seem to be forgetting is the elephant in the room – the whole question of prosecutorial discretion under Art 35(8) of the Constitution and the seeming mystery behind it. In Singapore, the Public Prosecutor has a wide discretion. He does not publish any prosecutorial guidelines and the public is left to ‘trust’ that his decisions are made with full propriety. That is to say, without abusing his power and with constitutional legitimacy.

While the Attorney General’s Chambers might be rightly assumed to have exercised its discretion in a proper manner in this case, such cases of disparities in the eyes of the public can and should be addressed by providing greater prosecutorial transparency – in all cases. In my opinion, greater transparency from prosecutorial authorities is in the public interest, contrary to the suggestions of the AGC.

The Constitution, actual bias and transparency

Art 12(1) of the Constitution prescribes that all accused persons be treated with equality before the law. This means that like cases must be treated alike, without any actual bias. In 2011, I filed a criminal motion against the Public Prosecutor challenging the exercise of prosecutorial discretion to charge my client Ramalingam Ravinthran (“Ramalingam’s case”) with a capital drug offence, while his co-accused was charged with a non-capital offence. They had been arrested after being in the same car with a large quantity of drugs. My client was sentenced to death, while his co-accused was sentenced to 20 years in jail with 24 strokes of the cane. The motion was dismissed, but the Court of Appeal clarified that the prosecution’s discretion to prosecute can be challenged on grounds of abuse of power or unconstitutionality.

By way of a separate criminal motion, I used the principles elucidated in Ramalingam’s case and commenced another challenge against the Public Prosecutor’s exercise of prosecutorial discretion to charge my client Yong Vui Kong – a drug mule, with a capital drug offence, while his boss and supplier was let off with a discharge not amounting to acquittal on three separate capital charges. This too was dismissed by the Court of Appeal.

In both cases, proving actual bias on the part of the Public Prosecutor was an insurmountable task, given the complete lack of any prosecutorial guidelines or reasons in their exercise of discretion. It is meaningless to say that the prosecutorial decisions are still subject to scrutiny for actual bias and unconstitutionality, when the very information which would prove such breaches is kept out of sight.

Contrary to the AGC’s suggestions, publishing such guidelines does not lead to ‘satellite litigation’. It is precisely the lack of such guidelines that leads to such cases having to be filed, as Defence lawyers and the public are left bewildered at seeming disparities in prosecutorial decisions.

Art 9(1) of the Constitution prescribes that no person shall be deprived of his life or personal liberty save in accordance with the law. Implicit in this is that fundamental rules of natural justice must be adhered to. This requires that there be no bias or interest on the part of decision makers. The police have said that it is ‘unfortunate that such untruths have been put out’ – in relation to the allegations of possible bias on the part of prosecutorial authorities in the NUS voyeur case. I agree – but I fear that such actions are a direct consequence of the lack of transparency on the part of prosecutorial authorities. Had there been publicly available prosecutorial guidelines, like for our counterparts in Hong Kong or the United Kingdom, with early clarification on grounds of prosecutorial decisions, such wild speculation could be averted. It is therefore in the interest of the Government and good administration that codes of disclosure and prosecutorial guidelines be set out.

Looking abroad

The Crown Prosecution Service in the UK provides publicly available guidance on a multitude of criminal offences and procedural issues. So committed to the rule of law they are, that decisions that are made without full compliance with these publicly available codes are made subject to judicial review.  The AGC refers to such challenges as ‘satellite litigation’- which is additional litigation outside of the major piece of litigation in Court. These include challenges challenging the propriety of the prosecution, as I had done in Ramalingam and Vui Kong’s case. In countries like the UK, the outcome of such litigation includes requiring the prosecution to give more specific guidelines on prosecutorial guidelines or to require the prosecution to revisit their decisions. The AGC insinuates that such outcomes are negative. I completely disagree. A strong commitment to the rule of law and ensuring the propriety of its administrative decisions is something Singapore can and should aspire to.

Closer to home, Hong Kong’s Department of Justice also makes public a Prosecution Code– which explains how Prosecutors make their decisions to prosecute. While I agree that second chances and warnings ought to be considered by authorities where appropriate, a lack of guidelines on which such decisions are made leads to wild speculation and appearances of bias. That is not in the spirit of Arts 9 and 12 of the Constitution.

Conclusion

Transparency of prosecutorial discretion is certainly in the public interest and forms the backbone of justice in any society – the AGC’s concerns pertaining to the publication of guidelines are misconceived and outdated. Would the common man be able to understand why two seemingly ‘like’ cases are treated wholly differently, without more transparency on the part of prosecutorial authorities? Justice is not a cloistered virtue. Public scrutiny is not as disastrous as the AGC makes it out to be and would be wholly beneficial to help the public understand the decisions of prosecutorial authorities.

Special mention of thank you to Gabriel Tan of Durham University for assisting on the research.

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