Prosecutorial Discretion Is A Shield Not A Sword

27 Pages Posted: 1 Dec 2019

See all articles by Kumaralingam Amirthalingam

Kumaralingam Amirthalingam

National University of Singapore (NUS) - Faculty of Law

Date Written: November 28, 2019

Abstract

The Public Prosecutor plays an important gatekeeping role in the administration of criminal justice through the exercise of prosecutorial discretion. This discretionary power allows the prosecutor to decide whether a person should be charged, and if so with what offence. The prosecutor may divert a suspect away from the criminal justice process by imposing certain conditions, secure guilty pleas from the offender through negotiation, and discontinue prosecutions. To prevent the abuse of this power by the Government, the responsibility for the initiation, continuation and disposition of criminal matters is vested in the Attorney-General as Public Prosecutor, who is expected to act independently of the Government in making prosecutorial decisions. More than that, the Public Prosecutor is expected to act as a "minister of justice" and guardian of the public interest.

This article argues that prosecutorial discretion is meant to be used as a shield against political interference; to that end prosecutorial independence is essential. However, there is a risk that the Executive may use prosecutorial discretion as a cover for political interference by hiding behind a veneer of prosecutorial independence in order to influence a prosecutorial decision without being held democratically accountable. Equally, there is a risk that prosecutorial discretion may be used as a sword when the Government deliberately, or sometimes inadvertently, co-opts it as a tool to enhance legislative or executive power over criminal matters, or to undermine individual rights.

Keywords: Prosecutorial discretion, prosecutorial independence, criminal justice, minister of justice, Attorney-General

Suggested Citation

Amirthalingam, Kumaralingam, Prosecutorial Discretion Is A Shield Not A Sword (November 28, 2019). NUS Law Working Paper No. 2019/030, Available at SSRN: https://ssrn.com/abstract=3494877 or http://dx.doi.org/10.2139/ssrn.3494877

Kumaralingam Amirthalingam (Contact Author)

National University of Singapore (NUS) - Faculty of Law ( email )

469G Bukit Timah Road
Eu Tong Sen Building
Singapore, 259776
Singapore

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
198
Abstract Views
726
Rank
277,324
PlumX Metrics