Time for Prosecution Guidelines?

Khadijah who survived the rigorous internship programme at Pusat Rakyat LB discusses the possible benefits of prosecution guidelines to the discourse on freedom of expression in Malaysia.

Although the Attorney-General announced that he was dropping the sedition charge against Professor Azmi Sharom in February 2016, the ubiquity of the Sedition Act 1948 left a bitter taste amidst the elation, in particular the discretion of the Public Prosecutor in bringing sedition charges in the recent past. Why wait 17 months to drop the charge? How about the other cases – Mat Shuhaimi? Tian Chua? Of course we all welcomed this positive development (in fact all sedition charges should be dropped #MansuhAktaHasutan campaign) but until the 1948 Act is repealed, we could all benefit from prosecution guidelines on the matter.

A suggestion for guidelines is by no means a challenge to the discretion of the Public Prosecutor to “institute, conduct or discontinue any proceedings for an offence” (article 145(3) of the Federal Constitution), but it could be a useful guide for the DPPs and the Police, when considering whether to bring sedition charges. For the public, it could also bring about constancy and predictability in this area – at this point in time, many are not sure what is seditious/not seditious anymore – a Facebook posting jokingly (or perhaps seriously) stated that everything is seditious except postings of cute kittens.

In the UK, the Crown Prosecution Service (CPS) established a Code for Crown Prosecutors that is issued by the Director of Public Prosecutions. This Code is enforced through section 10 of the Prosecution of Offences Act 1985 and it gives guidance to prosecutors when making decisions about prosecutions.

Prosecutors are subject to the Threshold Test and the two-part Full Code Test. Firstly, the Threshold Test is applied ‘where the suspect presents a substantial bail risk and not all evidence is available at the time when he or she must be released from custody unless charged.’

Whereas the two-part Full Code Test sets out two stages – the evidential stage and the public interest stage, which must be fulfilled to start or continue a prosecution. First, the evidential stage ensures that there is sufficient evidence to provide ‘a realistic prospect of conviction’ against a suspect. The public interest stage requires prosecutors to consider the gravity of the prosecution in the interest of the public.

In certain emerging areas such as prosecuting cases involving communications sent via social media, a separate but complementary guideline (to the Code for Crown Prosecutors) sets out the different categories of offences with an explanation of the offences and a reminder to prosecutors that they must abide by freedom expression guaranteed in article 10 of the European Convention on Human Rights.

The UK social media prosecution guidelines was precipitated by the fact that in 2012, many teenagers were prosecuted for their tweets or messages posted via social media – for example, Paul Chambers who joked on twitter that he would “blow the airport sky high” when the airport was closed and his flight was delayed. The UK High Court overturned his conviction and the (then) Director of Public Prosecutions admitted that it was a wrong judgement call to prosecute Chambers. (‘U.K. sets out social media prosecution guidelines’, CBSNews, 19 Dec 2012)

The prosecution guidelines is nothing more than making public the balancing exercise between freedom of expression and the need to limit some form of expression or speech. As such, the social media prosecution guidelines are meant to balance between credible threats of violence, harassment or stalking and unpopular (which can be prosecuted) and unfashionable opinion about serious or trivial matters or banter or humour, even distasteful or painful communications. (‘U.K. sets out social media prosecution guidelines’, CBSNews, 19 Dec 2012) #TakFunny Campaign

The discourse on freedom of expression would benefit greatly if similar prosecution guidelines are adopted for sedition cases or any area where freedom of expression is being limited. It will show to the public how prosecutions are being carried out and would allow the public to further understand the discretionary powers that have been conferred upon the Attorney-General, thereby increasing accountability and transparency of the Attorney-General and his office.

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Malaysian Centre for Constitutionalism and Human Rights (MCCHR) is a non-profit based in Kuala Lumpur with the mission of promoting active democratic participation and human rights awareness.

Posted on 29 March 2016. You can follow any responses to this entry through the RSS 2.0.

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