Saturday, January 21, 2012

AGC: Robust reviews before discretion is exercised

THE Attorney-General's Chambers (AGC) yesterday sought to reassure the public that its decisions to charge offenders involved in the same crime differently are done only after thorough reviews by many levels of officers.

By K. C. Vijayan, Law Correspondent

There are internal guidelines that guide its officers and ultimately the finding of guilt or innocence is determined by the courts and not the AGC, it said in a statement.

The reassurance comes in the wake of a recent case that sparked debate on the issue of prosecutorial discretion.


Case that sparked the debate

RAMALINGAM Ravinthran and his accomplice Sundar Arujunan seemed destined to face the hangman, after they were arrested in 2006 for trafficking in cannabis.

Sundar, however, escaped the gallows when he was charged with trafficking in a shade less than the quantity that draws the mandatory death penalty.

This, after the Attorney-General exercised its prosecutorial discretion and reduced the amount of drugs specified in the charges against him.

But when Ramalingam was dealt with later, the quantities of drugs in the charges against him still meant the death penalty.

Sundar pleaded guilty to the lesser charges and was sentenced to 20 years' jail and 24 strokes of the cane.

Ramalingam, however, was convicted and put on death row.

After he had exhausted his avenues of appeal in September 2010, he filed a motion in an attempt to reopen his case.

Central to his application was that even though he and Sundar were involved in the same crime, he was prosecuted for capital offences whereas Sundar was accused of non-capital offences.

Ramalingam wanted his charges amended so there would be no difference in their punishment.

Last week, the Court of Appeal dismissed his motion in a 48-page written judgment delivered by Chief Justice Chan Sek Keong.

CJ Chan in his judgment, said it is not unlawful or unconstitutional, for the Attorney-General to artificially reduce the amount of drugs specified in a trafficker's charges, to differentiate from those of his accomplice.

Prosecutorial discretion refers to the powers of the Attorney-General to decide what charges to prefer against an accused person. It is a power that cannot be challenged except under exceptional circumstances such as when the Attorney-General has used it unfairly. The Attorney-General cannot be compelled to explain his use of discretion in deciding what offences to proceed with.


Last week, the Court of Appeal ruled that it is neither unlawful nor unconstitutional for the Attorney-General to artificially reduce the amount of drugs in a trafficker's charges, to differentiate them from those of his accomplice.

But the court, in a written judgment by Chief Justice Chan Sek Keong, stressed that the Attorney-General's decision to prosecute can be called into question if he acted unfairly in the use of his discretion.

In the case, Ramalingam Ravinthran was sentenced to death for trafficking in cannabis, while his accomplice was jailed for 20 years and given 24 strokes of the cane.

Ramalingam had filed a motion to question if the Attorney-General had deprived him of his right to fair treatment and sought to have his charges amended.

Several lawyers, academics and human rights group Maruah had commented on the case, asking the AGC to be more transparent in its decisions to prosecute.

In its statement yesterday, the AGC explained why it might not be appropriate to do so for many reasons, from constitutional right to efficiency and public interest.

It began by noting that prosecutorial discretion is provided for in the Constitution and is a responsibility undertaken with full recognition of its impact on society.

'The public should be assured that each decision is made carefully, with full consideration of the facts and due regard to what is required in the public interest.'

The AGC explained that in everyday matters, prosecutorial discretion is exercised by officers working under the close supervision of the Chief Prosecutors of the various crime divisions. In turn, they are supervised by the Solicitors-General and the Attorney-General.

The decision to charge a person is taken by at least two officers with at least one separate higher level of review in all cases.

'In many cases, including capital cases, there are multiple levels of review including personal review by the Attorney-General.'

Among other things, the officers look at the evidence, the facts as they relate to the law, the investigations done and the public interest in charging the accused person.

Cases in which two offenders may have been caught in apparently similar circumstances but are charged differently could be due to a wide range of factors.

These include the strength of evidence, the cooperation shown by the accused and mitigating circumstances such as mental or physical weakness, which might call for a compassionate approach.

Internal guidelines exist to ensure consistency. But these guidelines are not published and the Attorney-General does not generally explain his prosecutorial decisions because in arriving at the decisions, he and his officers 'consider a large number of often competing interests, including those of the victim, the accused person and society as a whole'.

Also, with the inevitable resource constraints, the AGC has to prioritise and it takes into account enforcement priorities, among other things.

By not publishing the guidelines, the Attorney-General is also able to be flexible when it needs to depart from them. This is critical because each case can then be scrutinised on its own merits 'at a nuanced level, which is the cornerstone of prosecutorial discretion', said the AGC.

Revealing the guidelines would also show which areas the prosecution is focused on and may incentivise offenders to commit crimes where they expect lesser charges.

Demand for reasons behind every decision would also delay proceedings and lead to frequent challenges by people unhappy with specific decisions, said the AGC.

It also noted that in the United States, the Supreme Court too has been reluctant to examine the basis of a prosecution as this is a function of the executive branch of the government.

This is also the case here, as provided for in the Constitution. Any shift would impair the Attorney-General's ability to prosecute.

Noted the AGC: 'While the Attorney-General determines who is charged and what charge is preferred, the determination of guilt or innocence, and consequently, punishment, is solely within the province of the court after it has considered the evidence and heard full arguments.'

It added that the Attorney-General's powers were open to judicial review and correction if it is shown they were exercised wrongly or in an arbitrary manner.

'There are clear remedies in cases where prosecutorial discretion has been exercised unlawfully or contrary to the Constitution.'

Separately, the Association of Criminal Lawyers of Singapore said yesterday that recent calls for more transparency in the Attorney-General's decisions were 'misplaced'.

'There must be an element of trust and faith that the Attorney-General will carry out his duty in good faith. Without such trust and faith the legal system will not work effectively.'