The National Assembly passing the Anti-Corruption (Amendment) Bill with a provision allowing the police and the Office of the Attorney General (OAG) to investigate corruption cases undermines the principle of natural justice and not separation of power.
Separation of power pertains to the three branches of the government, the Executive, the Judiciary, and the Legislature. Police and OAG are under the executive with separate roles.
The Constitution and police Act prescribe that the primary responsibility of the police under the home ministry is to prevent crime and maintain law and order. The OAG, although autonomous, has the mandate to carry out the responsibilities within the domain and authority of the government and other legal matters entrusted to the office. Article 27 of the Constitution enshrines the role of the prosecution to the OAG.
One of the main principles of the criminal justice system is that an organisation cannot be the investigator, prosecutor and adjudicator. The objective of instituting various organisations is to ensure there are checks and balances so that justice prevails.
There are already exceptions with the existing Anti-Corruption Act (ACC) empowering ACC to prosecute its case and police prosecute cases of offences graded petty misdemeanour and below. This dual function has already been questioned.
The national law review task force already recommended that police should not be allowed to prosecute, but the NA, by inserting the new provision in the Bill, is allowing a prosecuting agency to investigate.
As two wrongs cannot make right, it is imperative our legislators understand the complexities of an agency investigating and prosecuting a case.
The new provision in the Bill would not only result in a conflict of interest, but also impact the objectivity of the investigation and prosecution of cases. The greater danger would be when the opportunity for a fair trial is affected and when there are violations of individual rights. The doctrine of fairness would be lost.
Within the legal fraternity and ambit of democracy, OAG dropping cases investigated by police and ACC indicates thriving democratic procedures where individual rights are protected and there are checks and balances in place.
As a country that bases its legal system on the principle of natural justice, it is only sensible and reasonable for different organisations to execute different roles so that all citizens have a fair opportunity to be heard and courts make an informed decision.
The NA’s good governance committee incorporated the provision of allowing police and OAG to investigate corruption cases to address the shortage of human resources in ACC. Such short-term measures will not address pertinent issues. The solution lies in recruiting enough manpower in ACC, if it is the reason.