Saturday, January 30, 2016

Is The Ag's Power To Prosecute Or Not Prosecute A Case Absolute?

Let's not be too technical or legalistic.

To me, if a law does not make sense then it should not be in the book. Some would call such a law 'an ass'

We all know that under the Federal Constitution Article 145 clause 3, the Ag has the power to institute, conduct or discontinue a case.

But does that mean that the Ag has absolute power whether to prosecute a case or not?

Does it mean that if there are criminal elements unearthed in an investigation, the Ag could just ignore the findings and decide not to prosecute the case?

If that is the case, the law does not make sense. In that case, the  law is 'an ass' and should not be allowed to stand. In that case,  the law would, in effect, be inimical to the security of the state and the people.

Clause 145 (3) talks about the power being exerciseable at the Ag's 'discretion'

When you talk about a discretion, you cannot talk about 'absolute discretion' for such a creature does not exist.

That phrase 'absolute discretion' is a blatant contradiction-in-terms.

When you talk about exercising a discretionary power, you talk about the requirement to exercise it within certain parameters.

You talk about only taking relevant factors into account and not irrelevant considerations.

If you did otherwise, that would be a wrongful exercise of a discretion, wouldn't it?

So, if an Ag refuses to institute a proceeding where there are criminal elements would he be said to have rightfully exercised his discretion?

In other words, is his power whether to prosecute a case or not absolute - one that cannot be questioned?

I think not.

Otherwise, the law would be an ass. And needs to be amended.

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