Selective prosecution vs malicious prosecution

Deciphering legal distinctions in Malaysia.

WITHIN the last five years especially, allegations against the Attorney General’s Chambers (AGC) of “selective prosecution” has been hurled by political leaders and a section of society. This allegation suggests that the AGC has been abusing its powers and has been prosecuting selected persons unlawfully. Such allegations have serious consequences, such as undermining faith in the AGC.

At the outset, it is essential to understand the existing confusion in the use of the term “selective prosecution” by both ordinary citizens and, regretfully, by our political leaders too.

Within the Malaysian legal context, two terms often emerge in legal discussions: selective prosecution and malicious prosecution. These terms possess distinct characteristics, intentions, and implications under Malaysian law.

I hope to illuminate the distinctions between selective prosecution and malicious prosecution within the context of Malaysian law, clarifying their unique legal implications.

In a sense, all prosecutions in Malaysia are, and have to be, selective. Selective prosecution pertains to the discretionary decisions made by the AGC and law enforcement agencies to initiate legal proceedings against specific individuals or groups while refraining from prosecuting others facing similar circumstances.

This practice is intrinsic to the legal system, aiming to allocate resources judiciously and prioritise cases of greater severity,

evidentiary strength, or public interest. Not every offender can or should be prosecuted. In fact, I would propose to the AGC to not prosecute certain petty crimes and offenders which clearly does not serve the national interest. We have to find a different way to punish such offenders, for example those who steal food due to hunger or poverty.

Hence, the AGC must exercise its prosecutorial discretion wisely and compassionately. It irks me immensely when there is prosecution without compassion, but that is a matter for another column.

A fundamental aspect of selective prosecution in Malaysia is the exercise of prosecutorial discretion. It empowers prosecutors to assess cases, weighing factors such as the sufficiency of evidence, the nature of the offense, and available resources before deciding whether to prosecute.

While selective prosecution is a necessary tool for efficiently managing case loads and focusing on cases of significant public interest, it must comply with legal safeguards.

Selective prosecution should not be grounded in improper factors like race, religion, or political affiliation, as such actions would constitute prosecutorial misconduct and a violation of the accused’s rights as provided for under the Federal Constitution.

However, selective prosecution is never a defence in a criminal trial. The legal fraternity is quietly laughing at the recent accusations by politicians of selective prosecution by the AGC.

On the other hand, malicious prosecution is where there is prosecution of someone with malicious intent, knowingly lacking probable cause, and resulting in harm or damage. In essence, malicious prosecution involves the abuse of the legal process to inflict harm, harassment, or injury upon an individual.

So when political leaders and others are alleging malicious prosecution, are they alleging that the AGC is abusing its legal powers? If this is so, then they are allowed to sue for malicious prosecution.

The Federal Court case of Rawther v. Abdul Kareem [1966] 1 LNS 154; [1966] 2 MLJ 201 lays down the elements for the successful prosecution of the tort of malicious prosecution. There are five such elements as summarised below:

> The defendant must set the criminal law in motion against the plaintiff.

> The criminal proceedings terminated in his favour.

> There was no reasonable and probable cause for preferring the charges against the plaintiff.

> The defendant was motivated by malice in doing so.

> The prosecution had caused damage to the plaintiff.

Vazeer Alam Mydin Meera J., in the High Court case of Mohamad Izaham Mohamed Yatim v Norina Zainol Abidin & Ors [2015] 7 CLJ 805 observed that “it is trite that if there is reasonable and probable cause disclosed, then the plaintiff’s claim for malicious prosecution cannot be sustained, even if improper motive is shown. For it is well settled that once there is reasonable and probable cause, the motive for the prosecution is immaterial, even if it is malicious. In such circumstance the lack of bona fides is not an issue,” as Tom Denning Lord Justice stated in Tempest v Snowden [1952] 1 KB 130 at 140: “Even though a prosecutor is actuated by the most express malice, nevertheless he is not liable so long as there was reasonable and probable cause for the prosecution.”

The judge further stated that to allow any and every acquitted person to institute civil proceedings against the prosecutor or the investigating authority, on grounds of the prosecution having failed to prove its case against the accused, would be contrary to public interest and policy.

I would add further that to allow baseless allegations of malicious prosecution to continue against the AGC or any government agencies without having taken out any suit against the AGC or such agencies is akin to criminally defaming the AGC or the agencies. This is something that the new AG may want to ponder.

I will now delve into some of the salient distinctions between these two legal concepts within the Malaysian context:

Firstly, selective prosecution predominantly applies to actions taken by law enforcement agencies and prosecuting authorities. It revolves around the discretionary decisions to pursue legal action against specific individuals or groups. Malicious prosecution involves legal actions initiated by those in authority against others by misusing the legal process with malicious intent.

Secondly, the primary reason behind selective prosecution in Malaysia is administrative and practical. Authorities employ discretion to efficiently allocate resources and prioritise cases with heightened public interest or gravity. In malicious prosecution, the central element is malicious intent.

The individual instigating the malicious prosecution is driven by the desire to inflict harm, harassment, or injury upon the other party, typically for personal reasons and with no probable cause.

Thirdly, selective prosecution entails the lawful exercise of prosecutorial discretion within the confines of Malaysian law. It is an integral part of the standard operation of the legal system. In cases of malicious prosecution, the core issue revolves around the misuse and abuse of the legal process. Legal proceedings were initiated with malicious intent and without probable cause.

Fourthly, in selective prosecution cases, the burden of proof primarily rests on the prosecution or law enforcement to demonstrate that their discretionary choices were made in accordance with the law and without reliance on improper factors.

In cases of malicious prosecution in Malaysia, the burden of proof typically falls upon the plaintiff, who must substantiate all requisite elements, including the absence of probable cause and the presence of malicious intent.

Fifth, challenges to selective prosecution often aim to address concerns of discrimination or unequal treatment and may lead to adjustments in prosecutorial practices or the dismissal of specific cases.

Successful claims of malicious prosecution can result in legal remedies, including monetary damages, intended to compensate the victim for the harm and suffering endured due to unwarranted legal actions initiated with malicious intent.

I hope this clarifies that selective prosecution is a legitimate exercise of discretion by authorities to manage resources efficiently, while malicious prosecution pertains to the wrongful abuse of the legal process, rooted in malicious intent.

Senior lawyer Datuk Seri Dr Jahaberdeen Mohamed Yunoos is the founder of Rapera, a movement which encourages thinking and compassion among Malaysians. The views expressed here are entirely his own.