THE PUBLIC PROSECUTOR AND THE RULE OF LAW

1. THE PUBLIC PROSECUTOR AND THE RULE OF LAW Center for Comparative and Public Law Faculty of Law, HKU 4 December 2018 Kumaralingam Amirthalingam National University of Singapore

2. Overview and key questions • The Public Prosecutor and the rule of law • Independence and accountability • Separation of powers • The discourse on rule of law • What does it mean with respect to the Public Prosecutor? • Discretion and the rule of law • Is discretion compatible with the rule of law?

3. The Public Prosecutor and the rule of law • Charging • Art 35(8) of the Constitution and Criminal Procedure Code (Cap 68) s 11 • Diversionary programmes • Detention without trial • Criminal Law (Temporary Provisions) Act (Cap 67) s30 • Certificate of substantive assistance • Misuse of Drugs Act (Cap 185) s 33B • Clemency (death penalty) • Article 22P of the Constitution

4. The discourse on rule of law • An essentially contested concept • Functions of the rule of law • Protect individuals against arbitrary power of the State • Facilitate social and economic development • Defend national security and sovereignty against threats by individuals • Deontological or instrumental? • Rule of law • Rule by law • Rule of law and order

5. The discourse on rule of law • “Sometimes the differences are rooted in ideology. Conservatives often embrace the rule of law as a desirable developmental objective because they find in it things they especially value, such as property rights, fair treatment of foreign investors, strong police, and a general emphasis on law and order. Persons on the left, however, read the concept differently. They see in it a focus on rights and on fair and equal treatment for all, a focus that will help boost disadvantaged people and empower citizens generally. Meanwhile, centrists are drawn to the rule of law as a technocratic ideal, one that encompasses key elements contributing to good governance, such as governmental accountability, transparency, and anticorruption.” • Thomas Carothers, “Rule of Law Temptations” (2009) 33 The Fletcher Forum of World Affairs 49 at 52-53

6. The discourse on rule of law • Lord Bingham’s definition: • All persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts. • Eight ingredients: • Law must be accessible, clear and predictable • Matters should be decided according to law, not normally by discretion • Equality before the law • Power must be exercised lawfully, fairly and reasonably • Human rights must be protected • Disputes must be resolved without undue cost or delay • Trials must be fair • States must comply with national and international law obligations • J Jowell, “The Rule of Law: A Practical and Universal Concept” in J Jowell, JC Thomas, J van Zyl Smit, Rule of Law Symposium 2014 (Singapore: Academy Publishing, 2014) 3

7. The discourse on rule of law • Four aspects of the rule of law (Jowell) • Legality • Legal certainty • Equality • Access to justice and rights • “In fact, it could be said that perhaps the most important defining feature of a state based upon the rule of law is that a person in a rule of law state has the opportunity of challenging the government of the day with a reasonable prospect of success in an appropriate case.” • J Jowell, “The Rule of Law: A Practical and Universal Concept” in J Jowell, JC Thomas, J van Zyl Smit, Rule of Law Symposium 2014 (Singapore: Academy Publishing, 2014) 6

8. Discretion and the rule of law • “It seems to me then that discretion occupies an intermediate place between choices dictated by purely personal or momentary whim and those which are made to give effect to clear methods of reaching clear aims or to conform to rules whose application to the particular case is obvious.” • HLA Hart, “Discretion” (2013-2014) 127 Harvard Law Review 652 at 658

9. Rule of law, discretion and criminal justice • Criminal justice and discretion • Complaint • Investigation • Prosecution • Sentencing • Clemency

10. Prosecutorial discretion and the rule of law • Vertical and horizontal relationships • The constraint-empowerment paradox • Prosecutorial discretion – independence v accountability • Separation of powers

11. Prosecutorial discretion and the rule of law • The two stage test • Evidential sufficiency • Public interest • Judicial review • Abuse of power, breach of constitutional rights (Singapore) • Bad faith, dishonesty, breach of prosecution guidelines (UK) • Victims’ Right of Review (UK) • No charge preferred, discontinuance, no evidence offered, charges to lie on file

12. The Public Prosecutor / Attorney-General and the rule of law • Two thematic studies (the “black hole” theory) • National security (the Executive) • R (on the Application of Corner House Research and Others) v Director of the Serious Fraud Office [2009] 1 AC 756 • Belhaj v Director of Public Prosecutions [2018] UKSC 33 • Misuse of Drugs Act (Cap 185) s33B(2)(b) • Morally contentious criminal laws (the Legislature) • Penal Code (Cap 224) s377A • Suicide Act 1961 s2(1)

13. The Public Prosecutor / Attorney-General and the rule of law • Is too much power concentrated in the hands of the Public Prosecutor? • Should there be a separate Office of the Public Prosecutor from the Attorney-General’s Chambers? • How do we accommodate prosecutorial discretion within a rule of law framework? • Separation of powers • Prosecution guidelines • Prosecutorial ethics • Judicial review