THERE are numerous writings – easily accessible – on the role of a prosecutor, both in the civil law and common law jurisdictions. Malaysia belongs to the latter.

A prosecutor is said to be a “minister of justice” and not merely an “officer of the court”. This is because of his principal role of assisting the court to arrive at the truth and to do justice – between the public and the accused in accordance with the law and the dictates of fairness.

He represents the State and acts in the general public interest.

A former Senior Crown Prosecutor of New South Wales, Australia once said that it behoves a prosecutor “neither to indict, nor on trial to speak for conviction except upon credible evidence of guilt; nor to do even a little wrong for the sake of expediency, or to pique any person or please any power; not to be either gullible or suspicious, intolerant or over-pliant: in the firm and abiding mind to do right to all manner of people, to seek justice with care, understanding and good countenance.” [RR Kidston QC, “The Office of Crown Prosecutor (More Particularly in New South Wales)”, (1958) 32 ALJ 148)]

Elsewhere, it has been also said that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before the court what the prosecution considers to be credible evidence relevant to what is alleged to be a crime. A prosecutor has a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly.

The role of the prosecutor excludes any notion of winning or losing; his function is a matter of public duty. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.

[Rand J in the Supreme Court of Canada in Boucher v The Queen (1954) 110 CCC 263 at p 270].

It is expected that the prosecutor will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused’s trial is a fair one.

It is therefore not surprising that remarks by the lead prosecutor in Lim Guan Eng’s corruption case at the Butterworth Sessions Court for wrongfully misappropriating two plots of land have drawn much criticism. He was reported to have said that the “policy in the Attorney-General’s Chambers is that we only prosecute when we have a 99% (chance) of (getting a) conviction. The other 1% is an act of God, we cannot say (we have) 100% chance of winning.”

It goes to show that a prosecutor’s public statements are potentially dangerous. Given his high standing with the public, a prosecutor has a unique role to shape public opinion about a person or persons under investigation or prosecution.

It is even said that a prosecutor’s public statements can destroy a person’s reputation, prejudice his right to a fair trial, and undermine the public’s respect for the way the criminal law is administered. (Gershman, B “The Prosecutor’s Duty of Silence” 2016)

While some prosecutor statements are legitimate and necessary, the line between what is legitimate and illegitimate is not clear-cut.

It is said that when a prosecutor comments about specific cases, or discusses the evidence or offers opinion about an accused’s guilt, he may cross the line, prejudicing criminal proceedings.

That is why a prosecutor has to be most careful. It is said that a prosecutor has a duty to refrain from speaking.

It is a duty of silence. – September 12, 2020.

* Hafiz Hassan 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.