THE decision to arrest anyone in any criminal investigation lies with the police or any other enforcement agency, and they should not wait for  the go-ahead or approval from the Attorney-General’s Chambers before making an arrest.

Decisions pertaining to all the tools of investigation available to an investigator in either the Criminal Procedure Code or a relevant Act is the sole prerogative of the investigator.

The law never intended to fuse these powers with the powers of the attorney-general.

Police arrest powers are stipulated under Chapter 13 of the Criminal Procedure Code. It is one of the most potent aspects of criminal investigations to facilitate the gathering of admissible evidence.
 
The A-G does not have any such powers of investigations and thus, should not and must not interfere in any way at any stage of investigations until the investigator believes he is ready to take it up to the A-G.

The evaluation whether to prosecute or otherwise based on evidence gathered lies solely with the A-G. The impartiality and neutrality of the A-G ensures that any decision taken in prosecuting the relevant offenders is in the interest to see that justice is not only done, but seen to be done fairly.
 
There is no provision to allow or to encourage the Chambers to decide when or which witness should be arrested.

It is the investigator who has to use his discretion when he upgrades those who are acquainted with the “facts in issue” from a normal witness to a suspect. He has the discretion to use all the powers accorded to him by law to gather the best available admissible evidence.

The timing of an arrest comes with experience. A swift and accurate arrest increases the amount and quality of admissible evidence gathered. It moves in tandem with an investigator’s degree of suspicions and differs from one witness to another.

Wanton arrests of innocent witnesses amount to abuse of power, which can be due to acts of bad faith or incompetence of an investigator. The remedy for such wrongful arrests lies only with the courts.

An investigator’s discretion must be protected and safeguarded at all times without interference from external agencies. He is, however, supervised and guided by his superiors. The A-G’s role is strictly to advise on the evidence available.

However, he may instruct the investigator to come up with more evidence. The manner in how this evidence is to be gathered and enhanced is, at all times, left to the investigator.

The system in this mode acts as a check and balance to all enforcement agencies’ powers of investigations, either under the Criminal Procedure Code or the relevant Acts, as the case may be.

It is also inaccurate to conclude that only those who have done wrong are arrested. All suspects are deemed to be witnesses. Upon arrest and detention during criminal investigations, they are deemed to be assisting in investigations.

Evidence adduced can be incriminating or can also be used to exonerate suspects. There are other strategical reasons that may range from verifying exculpatory and inculpatory statements to the safety of witnesses.

In short, arrests are done to facilitate the completion of investigations in good faith. It does not necessarily point to any wrongdoing yet.

It must be stressed to all parties concerned that anyone under criminal investigation, whether as a witness, a suspect or even an accused in court, is presumed to be innocent until proven guilty. – July 25, 2019.

* G. Selva reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.