107TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS THE ADMINISTRATION OF CRIMINAL JUSTICE IN MALAYSIA: THE ROLE AND FUNCTION OF PROSECUTION Abdul Razak Bin Haji Mohamad Hassan* INTRODUCTION PART I Malaysia as a political entity came into A. Constitutional History being on 16 September 1963, formed by The territories of Malaysia had been part federating the then independent of the British Empire for a long time. After Federation of Malaya with Singapore, the Second World War, there was a brief North Borneo (renamed Sabah) and period of British military administration. Sarawak, the new federation being A civilian government came into being in Malaysia and remaining and independent 1946 in the form of a federation known as country within the Commonwealth. On 9 the Malayan Union consisting of the eleven August 1965, Singapore separated to states of what is now known as West become a fully independent republic within Malaysia. This Federation of Malaya the Commonwealth. So today Malaysia is attained its independence on 31 August a federation of 13 states, namely Johore, 1957. In 1963, the East Malaysian states Kedah, Kelantan, Selangor, Negeri of Sabah and Sarawak joined the Sembilan, Pahang, Perak, Perlis, Federation and was renamed “Malaysia”. Trengganu, Malacca, Penang, Sabah and Sarawak, plus a compliment of two federal B. Parliamentary Democracy and territories namely, Kuala Lumpur and Constitutional Monarchy Labuan. The Federal constitution provides for a Insofar as its legal system is concerned, parliamentary democracy at both federal it was inherited from the British when the and state levels. The members of each state Royal Charter of Justice was introduced in legislature are wholly elected and each Penang on 25 March 1807 under the aegis state has a hereditary ruler (the Sultan) of the East India Company. Appropriately, or Yang di-Pertua Negeri (Governor) in the the Malaysian legal system has not been states of Malacca, Penang, Sabah and plucked out from the sky but it is the Sarawak. The head of state must act in product of our experiences over the almost all matters on the advice of centuries; so does its criminal justice ministers drawn from and responsible to system which goes side by side with the the State Legislative Assembly. development of its legal system. In This pattern is repeated at the federal discussing the subject of The level. Parliament is a bicameral administration of criminal justice, legislature, the lower House (the House of understanding the constitutional history Representatives) being wholly elected. The just cannot be avoided. Inadvertently, the federal head of state, known as the Yang legal system that Malaysia inherited from Di Pertuan Agong, who is appointed from its colonial masters colours the pattern of among the nine Malay Sultans and serves the criminal justice system today. a five-year term, must act on the advice of the Federal Cabinet or a minister acting * Deputy Head of Criminal Investigation under the general authority of the cabinet. Department, Royal Malaysia Police, Sarawak The Prime Minister has to be a member of Contingent, Malaysia. 247 RESOURCE MATERIAL SERIES No. 53 the House of Representatives commanding which those who suffered any grievances the confidence of the House. The Upper or those who acted against the country’s House, the Senate, has two senators elected laws, to seek redress or to be punished. The by each Sate Legislative Assembly and a courts for the administration of criminal number of members nominated by the justice are provided for by the constitution Federal Government. and other laws. All laws are passed by Parliament, and The highest in the hierarchy of the there are bodies that see to its enforcement. courts is the Federal Court. It is the final The interpretation of the laws lies mainly court of appeal. The court’s jurisdiction is with the judiciary. The country exercises appellate, supervisory and advisory. This formal social control through the court consist of the Chief Justice and two establishment of a formal criminal justice other judges of the High Court or a greater system which is characterised by the uneven number as decided by the Chief existence of criminal laws, law enforcement Justice. The Court of Appeal has appellate agencies, prosecutors, judges, magistrates, jurisdiction to hear all appeals on question correction officials, prisons and other of law or sentences from subordinate institutions. courts. Three judges will sit in the courts to make decisions on any appeal. The High C. The Administration of Justice Court has jurisdiction to try all offences The federal constitution provides for the with the highest maximum sentence of exercise of power by the Legislature, the death and also has appellate jurisdiction Executive and the Judiciary. The judiciary to hear appeals of cases from subordinate plays an important role in this balance of courts. power. It has the power to hear and The Sessions Court has jurisdiction to determine civil and criminal matters, and try all offences except those with a possible to pronounce on the legality of any sentence of death. Normally one judge will legislative or executive of the federal as sit in the court to hear such cases. well as state constitutions. The Magistrate Court is the lowest rung The fundamental principle in Malaysia in the hierarchy of courts. It consists of is that an accused person is innocent until two categories of magistrates, i.e., First proven guilty by a competent court of law. Class Magistrates and Second Class Thus the criminal justice system in Magistrates. First Class Magistrates are Malaysia provides various safeguards to legally qualified and have jurisdiction to protect accused persons. A duty is imposed try all offences punishable with on the states, particularly the police force, imprisonment of up to ten years or with a to maintain law and order in the interest fine and 12 strokes of whipping. However of the public. Investigation into an offence their sentencing powers are limited to resides with the police, and the duty to impose imprisonment sentences of not decide whether a person ought to be more than 6 years. charged or not lies with the Attorney Lately because of the high backlog of General, who is a public prosecutor. cases in the Sessions Court, the power of the First Class Magistrate Court has been D. Hierarchy of The Courts and increased to hear cases of robbery under Their Jurisdiction section 392 of the Penal Code and The Federal Constitution of Malaysia housebreaking and theft under section 457 specifically provides for the rights of the of the Penal Code, which are punishable individual and to ensure that those rights with imprisonment of not more than 14 are upheld. It also provides an avenue for years. 248 107TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS Second Class Magistrates are normally to section 376 (I) of the CPC, the Attorney public servants and junior court officials General shall be the public prosecutor and experienced in judicial administration. The shall have control and direction of all sentencing in criminal cases is only limited criminal prosecutions and proceedings to imprisonment of not more than 12 under the Code. months or a fine. The Attorney General is appointed by One interesting point to note is that, the the Yang Di Pertuan Agong on the advice First Class Magistrates also perform duties of the Prime Minister. Among the criteria in Juvenile Courts, to try youthful on his appointment, he must be a person offenders of the ages of 10 to 18 years. The who is qualified to be a judge of the Federal magistrate sits with two advisors hearing Court. Immediately under him is the all offences except those punishable with Solicitor General who also performs the death. The court is being conducted in the same function in the absence of the Magistrate Chambers, to the exclusion of Attorney General. Holding officers under the public. The principle of this court is to the Attorney General’s Chamber are the rehabilitate the youthful offenders, Senior Federal Counsel, Federal Counsel preventing their development as criminals. and Deputy Public Prosecutor. The Attorney General oversees all criminal PART II prosecution in the country and in each state. There are Senior Federal Counsel A. Structure and Roles of and Deputy Public Prosecutors who Prosecution perform this duty on the Attorney General’s The prosecution of criminal cases is the behalf. main domain of the public prosecutor. In The Public Prosecutor may appoint Malaysia, the person responsible for this deputies who shall be under his general is the Attorney General. He holds office by control and direction. The Deputy Public virtue of Article 145 of the Federal Prosecutor may exercise all or any of the Constitution of Malaysia. The powers rights and powers vested in or exerciseable given to the Attorney General is contained by the Public Prosecutor. The power to in clause (3) of Article 145 which reads as institute criminal proceedings by the Public follows: Prosecutor includes the power to bring The Attorney General shall have criminal charges against persons. power, exerciseable at his discretion, The rights to appear before a court to institute, conduct or discontinue proceeding accorded to the Public any proceedings for an offence, other Prosecutor is contained in sections 377 and than proceedings before a Syariah 380 of the CPC. Besides the Public Court, a Native Court or a Court Prosecutor, the following persons are also Martial. authorised to conduct prosecution in court: The law relating to criminal procedure (1) a deputy public prosecutor, in Malaysia is contained in the Criminal (2) an advocate authorised in writing by Procedure Code (F.M.S. Cap. 6) (hereinafter the Public Prosecutor or a deputy mentioned as CPC). The Code lays down public prosecutor, and rules for such matters as the mode of (3) a police officer not below the rank of arrest; search of body, property or premises; Inspector.