Prosecutorial Discretion and the Legal Limits in Singapore

Abstract

Article 35 (8) of the Singapore Constitution states that the Attorney-General, as the Public Prosecutor, shall have the power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence. This prosecutorial discretion, though extremely wide, is not an unfettered one and must not be exercised in bad faith or in breach of constitutional rights. With respect to the equality provision in the Constitution, the Prosecution has to give unbiased consideration to all potential accused persons and avoid any irrelevant considerations. The paper considers whether the presumption of the constitutionality of prosecutorial decisions and the onerous burden on the accused person to displace the presumption should be re-examined. Further, the Prosecutor should consider disclosing the reasons underlying the prosecutorial decisions as far as possible subject to minimising potential risks and publishing guidelines on prosecutorial decision-making.

Keywords: Prosecutorial Discretion, Judiciary, Constitution, Equality