PUTRAJAYA – Chief Justice Tun Tengku Maimun Tuan Mat said that the authority to grant full or partial acquittal to individuals charged with criminal offences rests with the attorney-general, and not the courts.
She said under Article 145(3) of the federal constitution, the AG, who is also the public prosecutor, has the discretion to institute, conduct or discontinue any proceeding for an offence other than before a shariah court.
“When the public prosecutor decides to withdraw charges, the courts only have one of two very limited consequential options, which depends on the facts that either grant a discharge not amounting to an acquittal or discharge amounting to an acquittal.
“The courts cannot turn around and insist to the public prosecutor that a charge (is to) remain. Each of them, the judiciary and the public prosecutor, have their constitutionally demarcated constitutional functions and both must have adjudged fairly for the exercise of their powers to the exclusion of the other,” she said during her speech at the Opening of Legal Year 2024 ceremony at the Putrajaya International Convention Centre today.
“And yet, when a charge is withdrawn, the judge making the only available consequential orders is painted as corrupt, sometimes as incompetent or sometimes both.
“(However), what the public fails to understand is that the person responsible for the decision is the public prosecutor and not the courts. (But) it is often the courts that are chastised for such decisions and this erodes public confidence in the judicial system.”
Also present were Minister in the Prime Minister’s Department (Law and Institutional Reform) Datuk Seri Azalina Othman Said, Dewan Rakyat speaker Tan Sri Johari Abdul and Attorney-General Datuk Ahmad Terrirudin Mohd Salleh.
Tengku Maimun also said that regardless of internal or external judicial pressures, a judge must continue to hear cases without fear or favour as well as without hope of reward or any bias.
She reminded that the Federal Court, being the apex court, must not veer away from legal precedence when deciding on a case.
“The Federal Court cannot afford to be inconsistent as that interferes with the public, who organises their affairs upon legal clarity and certainty.
“In this regard, the individual opinion of a judge, so to speak, is irrelevant on account of ‘stare decisis’ (precedent legal principle). Even if a judge or court believes a decision of the higher court to be wrong, he is under the obligation to abide by it,” she said.
“It would be for the parties to bring that case to the higher court to argue in favour of departing from the previously established precedent if the circumstances so warrant it.” – January 15, 2024