oh, joy!

I was very pleased to learn that Singapore will have an uncharacteristically cool CNY season this year, thanks to stronger Northeast monsoon winds. In fact, I haven’t perspired much (if at all) this month! It’s usually impossible to go down for a drink without drenching your entire shirt. I know this great weather won’t last for long though. Just look at my 2011 post below. So I’ll just bask in this while it’s still here. Gloomy skies, billowing winds, a hibernating sun.. Certainly my cup of tea.

Yesterday over lunch, one of my fellow interns told me how her mentor, a former prosecutor, believed his primary aim as a lawyer was to “uphold the administration of justice“. It’s an oft repeated phrase amongst the legal fraternity. Most self-respecting lawyers see themselves as instruments of the State, protecting and championing not just their clients’ interests, but also the interests of society. Which is why most would also agree that gunning for a victory at the expense of all else is usually unethical, sometimes disgraceful.

Her mentor had a point to make when this statement was made. As someone with an intimate knowledge of the workings of the AGC, he is well aware of the immense power the prosecution holds with regard to prosecutorial discretion. Essentially someone’s fate can be dramatically altered with the stroke of a pen. Arbitrary it may seem, but the grounds for it have been robustly defended. Agree with it or not, barring any new developments in the legal landscape, prosecutorial discretion is here to stay, and hence it is more productive to consider the role prosecutors play in the light of these circumstances. Certainly, there is potential for a lot of good to be done on their end. No two cases are alike: perhaps there may be extenuating circumstances or mitigating factors that warrant a lesser charge. It is then up to the prosecution to keep an open mind when approaching the material facts of a case and summon their courage to exercise their discretion when the situation calls for it, even if it means a lesser sentence or an acquittal for the accused. It is the prosecution’s careful use of this power that helps demonstrate the principle mentioned above.

I was discussing this with another intern of mine when he pointed out that some prosecutors could potentially see this “administration of justice” in a totally different light. Perhaps these prosecutors see themselves as enforcers of the law, agents to do the State’s bidding to send evildoers to where they rightfully belong, isolated from society for as long as possible within the constraints of the law. While this may sound idealistic or even naïve, it is not without reason. In a mature judiciary which holds evidence and logic above all else, it is sometimes the case where individuals do not get the verdict they deserve due to a lack of evidence, poor witnesses or whatnot. It is hence in the interest of the prosecution to proceed on the most convenient or efficient charge, especially if they are most convinced of the guilt of the accused. This might even extend to selectively presenting evidence in a way that favours them. After all, the prosecution does not owe a duty to the accused person. That duty solely rests with the defence.

While the second view is all well and good, the prosecution must remember that already, the scales are tilted in their favour before the commencement of a trial. Granted, the onus is on them to prove that the accused is “guilty beyond reasonable doubt”, but the power of prosecutorial discretion gives them the privilege to play both barrister and judge at the same time. And so this power must certainly give one pause before he sets out to demolish a person. Besides, if we hold the mantra to be true (surely it must be, it’s become a cliché!), then are not accused persons members of society as well whose interests deserve due consideration? While we have seen presumably guilty individuals get away with their misdeeds, there have also been instances where individuals have been acquitted on appeal due to deliberate lapses in procedure from the prosecution stemming from a zealous urge to secure a conviction at all costs.

In conclusion, the hallmark of a good judiciary is one that allows everyone to have their field day in court, no matter how damning the circumstances may be. And the prosecution ought to support this cause. While not a perfect system, the alternative would be the kangaroo courts so commonly seen in dictatorships or tribal communities, which assign verdicts based on pre-judged ideas. If ever our society adopts this alternative it will be most saddening indeed.