The Limits of Prosecutorial Discretion

Attorney-General's Chambers, Singapore

The Attorney-General’s Chambers, Singapore. (By Sgconlaw, CC BY-SA 3.0, via the Wikimedia Commons.)

Marcus Teo
Fourth-year LLB student
Faculty of Law, National University of Singapore

IN A RECENT opinion piece published in The Straits Times,[1] Professor Walter Woon examined the role and functions of the Attorney-General (“AG”) and argued that the AG’s independence should be strengthened, among other ways, by separating the AG’s current function as a legal advisor to the government from his prosecutorial function. With respect to the latter, Professor Woon reminds us that decisions to prosecute or not involve a “judgment call”, and that “[t]here are many reasons why a decision may be taken not to prosecute.” However, such decisions have serious consequences for accused persons, victims of crimes, and the public.

The AG’s prosecutorial power is a tremendous one. The AG is a constitutional office. The Constitution states that the AG “shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence.”[2] The Criminal Procedure Code further states that as the Public Prosecutor, the AG “shall have the control and direction of criminal prosecutions and proceedings under this Code or any other written law”.[3] This means that while courts adjudicate over criminal proceedings brought before it, the very act of bringing those proceedings,[4] and the discontinuation of those proceedings without an acquittal or conviction,[5] are matters within prosecutorial discretion. Thus, as Professor Woon points out, “if the public prosecutor declines to prosecute, the case will never reach a judge, even if there has been a blatant breach of the law”.[6]

Not unfettered

One asks, then: what limits are there to prosecutorial discretion? After all, a constitutional state is limited by law. A constitution distributes power among organs of state and, in doing so, it also limits those powers. As Singapore’s courts have repeatedly affirmed, all power is subject to legal limits;[7] thus, “[u]nder the law, the Attorney-General must act according to law, as his prosecutorial power is not unfettered”.[8] Any abuse of the prosecutorial power could greatly undermine the integrity of the criminal justice system, and the rule of law. Ensuring that there are constitutional limits to this power is therefore crucial.

Singapore’s courts have repeated affirmed that the AG’s discretionary power is “not absolute”.[9] Prosecutorial discretion cannot be exercised in bad faith, or in a manner contrary to the equality guarantee under Article 12 of the Constitution.[10] However, these legal limits are arguably constrained by the application of the presumption of constitutionality. In Yong Vui Kong v Attorney-General (“Yong Vui Kong”), concerning acts of the President and Cabinet in the process of granting clemency, it was held that “all things are presumed to have been done rightly and regularly”.[11] The court in Ramalingam held that prosecutorial discretion also benefits from this presumption.[12]

The presumption of constitutionality is more than the optional presumption of fact contained in the Evidence Act that all executive acts are “done rightly and regularly”,[13] which is rebuttable by proof on a balance of probabilities.[14] For legislative acts, the presumption may only be rebutted by evidence leaving “nothing on the face of the [act] or the surrounding circumstances” to justify the act’s legality.[15] This higher standard is required precisely because of the need to maintain a “practical difference between the presumption [of constitutionality] and the ordinary burden of proof”.[16] The same applies to acts of constitutional-rank executive officers as well – thus, in Ramalingam, the court noted that the “presumption of legality for [officials’] acts […] will certainly be stronger in relation to the acts of an official who holds a constitutional office”.[17]

The presumption of constitutionality could thus operate as a powerful shield for the executive. This is especially since it has never been rebutted in Singapore. The presumption places an onerous burden of proof on applicants who are ill-equipped to discharge it, given that any relevant facts would be especially within the knowledge of the AG.

What legitimates such broad deference to prosecutorial discretion? In Ramalingam, the Court of Appeal justified the presumption of constitutionality on the “separation of powers doctrine”, and the “high office” of the AG.[18] The former did not render the discretion unreviewable, since no power can be exercised “unlawfully”.[19] Thus, the presumption of constitutionality was not justified on the content of the issues covered by prosecutorial discretion, but on the office that wielded that power. With regards to the latter justification, in Yong Vui Kong and Ramalingam, the courts relied heavily on their characterization of the AG’s “high office”.[20]

Yet, such reliance might be questioned. Would not the fact that these are high offices mean that those occupying those offices should be more accountable since they wield tremendous power that could gravely affect the lives and livelihoods of many people? Furthermore, would applying restrictions less stringently to higher-ranking officials simply by virtue of their status not be antithetical to the very idea of the rule of law?

Interestingly, the court in Ramalingam reasoned that “as the Legislature and the Executive are co-equal under the Constitution, the courts should also accord a similar presumption to the exercise of the prosecutorial power as a facet of the executive power”.[21] This equivalence is problematic. Arguably, legislative acts benefit from the presumption of constitutionality not because of the legislature’s “high office”, but because of the “democratic credentials” of MPs;[22] “it must be presumed that the legislature understands and correctly appreciates the need of its own people”.[23] Furthermore, they are subject to a political limit: democratic accountability. This principle would apply to acts of the Elected President, and perhaps Cabinet members who are constitutionally required to be appointed from elected MPs.

Yet, the AG is the only constitutional officer in the executive branch who is not elected. It is thus hard to justify why the presumption of constitutionality should apply to the exercise of prosecutorial discretion.

Political limits?

If effective legal limits on the prosecutorial power are scant, one might argue that political limits are ever more necessary. Such limits take the form of political accountability for the exercise of one’s powers. As part of the executive, the exercise of the AG’s power could be subject to the doctrine of ministerial responsibility to Parliament. Indeed, questions on prosecutorial power have been raised and answered in Parliament.[24] Yet, given that the Parliament in Singapore is overwhelmingly controlled by one party, the efficacy of such political checks is arguably limited.

Another source of political limits on the AG’s prosecutorial power is public opinion. This requires treading a fine line between independence and restraint, for an AG that always capitulates to public opinion reduces the rule of law to mob justice. However, even the judiciary recognizes that its “legitimacy” is affected if its decisions are “bereft of reasoning”, since this makes them “unaccountable for their decisions”.[25] Since, like the judiciary, the public has no direct electoral link to the AG, a duty to give reasons for the exercise of prosecutorial discretion might be necessary to ensure that the AG is accountable to public opinion.

It is sometimes argued that no obligations to give reasons should ever be imposed because the need for the efficient administration of the criminal justice system trumps the need for the AG’s accountability, and because the “risk that criminals […] will start gaming the system” outweighs the risk of “the prosecution act[ing] maliciously or wrongly.[26] Thus, in Ramalingam, it was held that the AG is not legally obliged to give reasons for his decisions.[27] However, the CA acknowledged that, in certain cases, non-prosecution may warrant an explanation,[28] and in recent years, the Attorney-General’s Chambers has voluntarily given reasons for the exercise or non-exercise of prosecutorial discretion in a few controversial cases.[29] This responsive approach towards public opinion is a positive one, for the reasons given above.

To protect the rule of law, as well as to uphold the legitimacy of the office, appropriate limits must be imposed on the prosecutorial power. As Professor Woon himself noted in his Straits Times article:[30]

Prosecutions are a tangible manifestation of the rule of law. When the prosecutorial machinery is abused for political ends, ordinary citizens’ faith in the rule of law is shaken. If people do not believe that the system is fair, they will subvert it.

In other words: if people do not believe that the AG is fair and accountable in exercising his prosecutorial discretion, they will lose their faith in the criminal justice system, and the constitutional system as a whole.


Notes

1    Walter Woon, “The Public Prosecutor, Politics and the Rule of Law“, The Straits Times (29 September 2017), archived here.
2    Constitution of the Republic of Singapore (1985 Revised Edition, 1999 Reprint) (“Constitution”), Article 35(8).
3    Criminal Procedure Code (Chapter 68, 2012 Rev Ed) (“CPC”), section 11(1).
4    Quek Hock Lye v Public Prosecutor [2012] 2 SLR 1012, [2012] SGCA 25, paragraph 28. The only exception to this rule would be private prosecutions, which may only be brought for certain minor offences, and which are ultimately subject to the Public Prosecutor’s decision to terminate them under the Discretion: CPC, s 11(10).
5    Yong Vui Kong v Public Prosecutor [2012] 2 SLR 872, [2012] SGCA 23, para 27. Thus, while the Public Prosecutor has the discretion to discharge an accused person, that discharge does not amount to an acquittal without the court’s consent: CPC, ss 232(2) and (4).
6    Woon, above, note 1.
7    Chng Suan Tze v Minister for Home Affairs [1988] 2 SLR(R) 525, [1988] SGCA 16, para. 86; Tan Seet Eng v Attorney-General [2016] 1 SLR 779, [2015] SGCA 59, paras 1–2.
8    Law Society of Singapore v Tan Guat Neo Phyllis [2008] 2 SLR(R) 239, [2007] SGHC 207, para 148.
9    Ramalingam Ravinthran v Attorney-General [2012] 2 SLR 49, [2012] SGCA 2, para 17.
10   Tan Guat Neo Phyllis, above, n 8, para 149; Ramalingam, id, para 51.
11   Yong Vui Kong v Attorney-General [2011] 2 SLR 1189, [2011] SGCA 9, para 139.
12   Ramalingam, above, n 9, para 44.
13   Evidence Act (Cap 97, 1997 Rev Ed), s 116, illustration (e). It is also known as the omnia praesumuntur rite esse acta maxim (see Aspinden Holdings Ltd v Chief Assessor [2006] 3 SLR(R) 99, [2006] SGHC 72, para 52; and Aspinden Holdings Ltd v Chief Assessor [2006] 4 SLR(R) 521, [2006] SGCA 31, para 57), which the court in Yong Vui Kong made reference to: above, n 11.
14   Tan Kiam Peng v Public Prosecutor [2008] 1 SLR(R) 1, [2007] SGCA 38, para 60 – while this case concerned rebuttable presumptions of law in the Misuse of Drugs Act (Cap 185, 2008 Rev Ed), the principle would apply equally to optional presumptions of fact.
15   Lee Keng Guan v Public Prosecutor [1977–1978] SLR(R) 78, [1977] SGCA 2, para 19 (emphasis added).
16   Public Prosecutor v Taw Cheng Kong [1998] 2 SLR(R) 489, [1998] SGCA 37, para 80.
17   Ramalingam, above, n 9, at para 47 (emphasis added).
18   Id, para 44.
19   Id.
20   Yong Vui Kong, above, n 11, para 139; Ramalingam, above, n 9, paras 44–46.
21   Ramalingam, id, para 48.
22   Jack Tsen-Ta Lee, “Rethinking the presumption of constitutionality” in Jaclyn L Neo (ed), Constitutional Interpretation in Singapore: Theory and Practice (New York, NY: Routledge, 2017) at 81.
23   Shri Ram Krishna Dalmia v Shri Justice S R Tendolkar AIR 1958 SC 538 at 547, [1958] INSC 30, Supreme Court (India), cited with approval in Lee Keng Guan, above, n 15, para 19(c); Taw Cheng Kong, above, n 16, para 79; Ramalingam, above, n 9, para 48.
24   Singapore Parliamentary Debates, Official Report (6 March 2012), column 2041 (Pritam Singh), and columns 2051 and 2058 (K Shanmugam).
25   Thong Ah Fat v Public Prosecutor [2012] 1 SLR 676, [2011] SGCA 65, paras 24 and 14 (emphasis added); see also Lai Wee Lian v Singapore Bus Ltd [1984] 1 AC 729 at 734 (Privy Council on appeal from Singapore); and Yap Ah Lai v Public Prosecutor [2014] 3 SLR 180, [2014] SGHC 70, paras 66–69.
26   Shanmugam, above, n 24, col 2058.
27   Ramalingam, above, n 9, para 76.
28   Ibid, paras 76–77 – although the court here focused on the importance of the right to life in the European Convention on Human Rights, the interest in the preservation of an accused person’s life and physical well-being is uncontroversial, and should lead our courts to require the AG to give reasons for the non-prosecution of law enforcement officers who unlawfully threaten an accused person’s life or physical well-being.
29   Chen Siyuan, “The Limits on Prosecutorial Discretion in Singapore: Past, Present, and Future” (2013) 5 International Review of Law 19–21.
30   Woon, above, n 1.

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