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CONCERNS over selective prosecution in corruption cases have resurfaced amid heightened public attention on high-profile investigations led by the Malaysian Anti-Corruption Commission (MACC) targeting senior government officials.
Critics argue that when only recipients of bribes are charged, while those offering them appear to evade legal consequences, it creates a perception of unfairness and casts doubt on the principles of justice.
Explaining the issue, lawyer and former Deputy Public Prosecutor Datuk Geethan Ram Vincent emphasised that, in principle, both the giver and the recipient of a bribe commit a criminal offence.
He said that under the MACC Act, particularly Section 16, both offering and accepting a bribe are offences in themselves.
“From the standpoint of the elements of the offence, the basis is identical: there must be an act of giving or receiving money or some other inducement with corrupt intent.
“The only difference lies in the role of the parties involved — one gives and one receives. For the recipient, there is usually the additional element of a connection to an official duty or responsibility. In principle, both should be prosecuted, although charges do not necessarily need to be brought simultaneously,” he explained.
Addressing a question frequently posed by the public — why sometimes only the recipient faces prosecution — Geethan noted that the decision to prosecute depends on the facts of each case.
“There are situations in which the bribe-giver reports the act to the MACC after being solicited, cooperates in a sting operation, acts under duress, or serves as a key witness against the recipient.
“In such instances, the prosecution may choose not to charge the giver in the public interest and as part of prosecutorial strategy.
“High-profile cases have seen givers of bribes act as principal witnesses against recipients, such as former Negeri Sembilan Chief Minister Tan Sri Mohd Isa Samad, Datin Sri Rosmah Mansor, and former Penang Chief Minister Lim Guan Eng.
“In certain cases, immunity may also be granted in exchange for testimony,” he said.
Geethan stressed that the decision to prosecute rests with the discretion of the public prosecutor, as provided under Article 145 of the Federal Constitution and Section 376 of the Criminal Procedure Code.
He added that this authority is considered wide-ranging and, in principle, cannot be challenged in court.
He said attempts to contest prosecutions on the grounds of ‘selective prosecution’ have rarely succeeded. Courts evaluate cases based on evidence against the accused, not on who is left uncharged.
“The court intervenes only in cases of clear abuse of process, not merely due to perceptions of imbalance.
“Before proceeding with charges, the prosecution typically considers factors such as the sufficiency and strength of evidence, credibility and cooperation of witnesses, investigative uncertainties, public interest, and likelihood of conviction.
“In court, the burden of proof for givers and receivers is the same, but if evidence against the giver is weak or relies entirely on their own testimony as a witness, a decision not to prosecute may be taken to ensure a successful case against the recipient,” he added.
Geethan acknowledged that, from the perspective of justice, charging only the recipient can create a perception of bias. If left unaddressed, this may erode public trust in the legal system.
“While the prosecution is not obliged to disclose its reasoning to the public, which sometimes involves sensitive or confidential government information, a measure of transparency can help restore public confidence.
“There is a view within the Attorney General’s Chambers that it is appropriate to explain decisions at least to Parliament when questioned, without revealing sensitive details. Mandatory prosecution of both parties is seen as impractical, since the criminal justice system requires discretion to evaluate the unique facts of each case.
“However, reforms to enhance accountability, such as reporting obligations to Parliament, could improve transparency without compromising prosecutorial strategy.
“Ultimately, the fundamental principle of justice must not only be applied but also visibly demonstrated. Public perception is a crucial component in upholding the rule of law,” he said.
Geethan added that although legally it may be permissible not to prosecute the giver of a bribe when based on factual considerations, clearer communication and institutional accountability could reduce misunderstandings and strengthen public confidence in Malaysia’s justice system.
The public concern, he noted, extends beyond identifying wrongdoing to questioning whether justice is truly administered fairly. - February 27, 2026
