The recent debate surrounding the attorney-general’s (AG) decision to charge a reckless driver with murder has reignited a long-standing concern: the breadth of prosecutorial discretion and the potential for its abuse.

I do not intend to delve into the merits of the current case. Instead, I wish to share a personal experience from my early years in practice that illustrates how unchecked discretion can lead to injustice—and how the courts can, at times, provide a remedy.

Decades ago, social workers approached me with a troubling case. A young, unmarried woman had been remanded for nearly five years without trial, facing a murder charge for what was, in truth, an offence of infanticide.

Her plight was heartbreaking. She had concealed her pregnancy from her family, endured labour alone in her bedroom, and delivered the baby in the toilet. In a state of trauma and confusion, she flushed the infant away.

The discovery came only when her parents called a plumber to fix a blockage. The plumber found the infant’s body, and the police were summoned.

Even then, the young woman remained silent. She was arrested and remanded, purportedly for murder—a charge that carries the death penalty under Malaysian law.

Yet the facts pointed to infanticide, a distinct offence under the Penal Code that recognises the unique psychological and physiological state of a mother who kills her child during or shortly after birth. Crucially, infanticide does not attract the death sentence.

When I met her at Kajang remand centre, she confirmed the tragic circumstances.

Her lawyers had done little, despite being paid. I felt compelled to act. I filed a habeas corpus application, seeking her release on the grounds that her prolonged detention without trial was unlawful.

The application came before the late Justice KC Vohrah, a conservative judge known for his compassion in criminal matters.

He looked me in the eye and said: “Hamid, I know what you are trying to do, but I will not hear the application for now. Instead, I will fix this matter before a judge and let the public prosecutor explain the propriety of the charge.”

This was a pivotal moment. Habeas corpus, though often seen as a blunt instrument, can serve as a catalyst for judicial scrutiny of prosecutorial decisions. Justice Vohrah’s approach ensured that the matter was ventilated before another judge, compelling the prosecution to justify its stance.

At the subsequent mention, the judge called both the deputy public prosecutor (DPP) and myself into chambers.

He confronted the DPP directly: “Tiada malukah? Hamid says this is infanticide. You want to charge her for murder, but she has been in remand for nearly five years without a charge or plea taken in the High Court. Hamid says she is a forgotten prisoner.”

The DPP was visibly embarrassed. He agreed to seek immediate instructions from his seniors.

That very day, the charge was reduced to infanticide. The young woman pleaded guilty.

The judge, taking into account her years in remand, sentenced her to only a few months’ imprisonment. With my consent, she was not released immediately but served the short sentence, allowing the law to take its course without further trauma.

This case underscores several critical points relevant to the current debate:

• Prosecutorial discretion is not absolute: The AG’s discretion to prefer charges must be exercised judiciously. Charging a person with murder when the facts support a lesser offence is not merely harsh; it is an abuse of power.
• Judicial oversight is essential: Habeas corpus, though limited, can provide relief. It forces the prosecution to justify its decisions and allows the judiciary to intervene when discretion is abused.
• Human compassion matters: The law must recognise the human realities behind offences. Infanticide is treated differently precisely because of the unique circumstances of childbirth and maternal trauma. To ignore this is to deny justice.
• Forgotten prisoners are a reality: The young woman’s five-year remand without trial is a stark reminder that systemic failures can leave individuals languishing in custody, invisible to the public eye. Vigilance is required to prevent such miscarriages of justice.

In the case of reckless driving leading to death, the decision to charge the accused with murder has sparked outrage. Many argue that the facts support a charge of reckless or dangerous driving causing death, not murder. The parallels with the infanticide case are clear: prosecutorial discretion, if unchecked, can distort justice.

The remedy lies in robust judicial oversight. Habeas corpus applications, judicial inquiries, and public scrutiny can all serve as checks on prosecutorial power. While the AG holds constitutional authority, that authority is not beyond question. The courts must remain vigilant, and the public must demand accountability.

My experience with the forgotten prisoner taught me that remedies do exist for prosecutorial abuse, though they require courage, persistence and judicial integrity. Habeas corpus is one such remedy. It may not always secure outright release, but it can compel the prosecution to reconsider charges and ensure that justice is done.

In the current climate, where prosecutorial discretion is under intense debate, we must remember that the law is not merely about punishment. It is about fairness, compassion, and the protection of individual rights.

The AG’s discretion must serve justice, not undermine it. And when it does falter, the rulers, courts and society must be ready to act.

The views expressed are those of the writer and do not necessarily reflect those of FMT.