COMMENT | An important part of public confidence in justice is confidence in the arrangements for prosecuting offenders. People want the assurance of a system which is fair, objective, and effective; that is as transparent as possible; and that takes proper account of the needs of victims.
It goes without saying that fair, efficient, and effective arrangements for prosecuting people suspected of committing criminal offences are of fundamental importance in a modern justice system.
Independence is an essential feature of the proper exercise of prosecutorial discretion. But the notion of independence cannot exist alone: it must co-exist with the notion of accountability. Indeed, independence and accountability are not opposing concepts: they work together. You cannot have one without the other.
Why is accountability such an important principle in the prosecutorial context? The reason is that that is the only meaningful way to maintain and enhance public trust and confidence in the administration of criminal justice.
If no one is seen to be held accountable for the exercise of prosecutorial discretion on the basis of publicly available criteria, how can the public ever have any assurance that decisions are not tainted or improper?
Direct impact
Accountability involves rendering an account to someone. It can be described as answerability, a key aspect of accountability which includes the duty to inform and explain.
It is my respectful opinion that the time has certainly come for the public prosecutor to explain what decisions were made and why and how these decisions were made. This is particularly true since prosecutors are vested with such broad discretion and decision-making authority in carrying out their duties. Their actions have a direct impact on the lives of individuals who come in contact with the criminal justice system.
But explanations are not enough. Being accountable also implies taking corrective actions where appropriate. Both the decision to charge and the decision to prosecute must be principled and made without any improper influence.
Similarly, decisions not to prosecute or continue with prosecutions. The public should not and must not be left in the dark wondering.
Severely undermined
The secrecy of a process will often generate speculation of impropriety. Conversely, transparency will support effective and meaningful public accountability. Thus, the public can see not only how and why prosecutors do things, but can also measure their actions against the principles they hold dearly.
The more the prosecutors make the exercise of discretion a matter of public record, the more likely the decision-making process will be seen as responsible and accountable, therefore enhancing public confidence.
Decisions relating to prosecutions should be made on the basis of evidence, the law, and public interest. It is important to stress again that these decisions are not to be influenced by improper considerations such as partisan politics or by the public’s desire that someone, anyone, be charged.
Confidence in the administration of criminal justice requires a measure of public accountability in the prosecution process. Like any other public agency, the performance of the prosecution service is always under public scrutiny.
As a result, where cases are not perceived to have been conducted effectively when they have been undertaken at great public cost and with little apparent public benefit, then the public’s respect for the administration of justice may be severely undermined.
The greater the impact of the decision on the public, the greater the need for public accountability.
Therefore, it is respectfully submitted that the public prosecutor must be answerable to the public for all his or her decisions henceforth.
PUTHAN PERUMAL is a legal practitioner.
The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.
