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Tuesday, December 14, 2010

Plea bargain - the Malaysian way

Plead guilty and get only half the punishment: Chief Justice

The above headline in the Star yesterday almost made me choked.

The report says,

"Those who plead guilty in court will soon get half the maximum punishment due under the law as they save the courts' time and reduce the number of backlogged cases."

The reason for this judicial sale is apparently this:

“The step was taken to help reduce the numbers of backlogged cases so the cases can be cleared as fast as possible,” he said.

The Chief Justice also hoped that the amendments would encourage offenders to plead guilty instead of going through a long trial."

I really do not know whether I should cry or do the proverbial hara kiri

Just consider this. What if someone is charged for murder. The mandatory sentence for murder is death by hanging. So he pleads guilty. Then what? Sentence him to hanging till he is half dead?

Or take a case of somebody being charged under section 378 of the Penal Code for stealing a pair of slippers. That offence would be punishable under section 378. The punishment is imprisonment which may extend to seven years, or with fine, or with both, and for a second or subsequent offence shall be punished with imprisonment and shall be also be liable to fine or to whipping.

So he pleads guilty. What does he get? In accordance with this brilliant proposal he would automatically get 3.5 years for stealing a pair of slippers.

Then on the same day a top corporate man is charged under the same section for stealing 100 million Ringgit from his own company. He pleads guilty too. And he also get 3.5 years of imprisonment.

Brilliant isn't it?

This is the problem when people who are running a certain essential arm of the country's administration are missing the concept, either out of sheer shallowness, deep inability to rationalise or non-understanding of the underlying reasoning for a certain act, rules or law.

Sentencing is an act which the Judge must exercise after considering all circumstances and facts before him or her. After a guilty plea is recorded or a conviction is made, the Judge must consider all the facts of the case, the surrounding circumstances and also the mitigation speech made by the Counsel or the accused.

The sentence imposed on a guilty party is a reflection of the society's abhorrence of his criminal act. It is also a means to punish the guilty party for his criminal act. Apart from that, in certain situations, the sentence is also meant to serve as a deterrent to other parties not to commit the same crime.

However, care must be taken to impose a fair and just sentence. The sentence must be proportionate to the offence committed. In the example that I have given above, the wholesale dishing of half punishment upon pleading guilty would make a mockery of the whole criminal justice system. Just imagine, a person stealing a pair of slippers receives the same jail term as a person who steals 100 million Ringgit. What kind of justice are we talking about?

In addition, modern approach towards a sentence of imprisonment is encapsulated by the recommendations made by the Council of European in the area of penal reform. These emphasise the principle that prison should only be used as a sanction of last resort.

Recommendation No. R (99) 22 concerning prison overcrowding and prison population inflation states:

“1. Deprivation of liberty should be regarded as a sanction or measure of last resort and should therefore be provided for only where the seriousness of the offence would make any other sanction or measure clearly inadequate.
2. The extension of the prison estate should rather be an exceptional measure, as it is generally unlikely to offer a lasting solution to the problem of overcrowding."

The Halliday Report - Making Punishment Work: A Review of the Sentencing Framework for England and Wales, for example, lists out the following important principles of sentencing, namely,  proportionality; consistency; freedom from improper discrimination; compliance with human rights; transparency; efficiency; effectiveness; and economy.

That is how sentencing should be approached. It should not at any rate and under any circumstances be approached as a wholesale discount policy upon pleading guilty. That would make a mockery of the whole criminal justice system in this country and reducing Malaysia to a laughing stock before the eyes of the whole world!

The astounding - and most alarming - thing about the piece of news in the Star is how the Chief Justice tried to justify the proposal to half the sentence upon a plea of guilt.

According to him, the sentence will be halved because,

  • they save the courts' time
  • they reduce the number of backlogged cases
  • it will help reduce the numbers of backlogged cases so the cases can be cleared as fast as possible.

He concluded by saying he "hoped that the amendments would encourage offenders to plead guilty instead of going through a long trial."

All that matters for this Chief Justice is speed. And clearing backlog. To him, the Courts and their efficiency is to be judged by looking at the number of cases disposed off by the Courts. Never mind the quality of judgments. Never mind justice and fairness. In other words, never mind the laws!

Did the Chief Justice refer to ANY ONE of the principles of sentencing in his announcement of this ground breaking proposal? No.

Did he refer to justice and fairness? No.

Did he even attempt to talk about proportionality, consistency and human rights? No.

The most frightening aspect of this news or announcement is the fact that the Chief Justice - the head of our Courts - saw it fit to announce this proposal instead of the de facto Law Minister. And he did that at the Judges Conference no less!

Is it within the ambit and purview of the Chief Justice's duty as the head of Judges/Courts to announce a new law which alters the policy on sentencing?

Is that not mixing up and blurring the lines which separates the powers between the Executives, Legislature and the Judiciary?

The Judiciary should just be concerned with its business, namely, implementing the law. And that includes implementing the current laws and rules on sentencing. It should not be concerning itself with the works of the Legislature and even more so, the Executive.

The Judiciary should not be seen to be an active participant  in promulgating new laws in respect of sentencing just on the basis that the Court would like to reduce backlogs. How warped can the Judiciary be?

What in heavens is happening to the judicial system of this country? Don't we understand - let alone practice - basic and fundamental principles anymore? Hello?

As for the last statement, that it is "hoped that the amendments would encourage offenders to plead guilty instead of going through a long trial", I just have three words to say, OH MY GOD!

We want to encourage offenders to plead guilty instead of going through a long trial by offering them a discount on the punishment? So the avoidance of the long trial should be a motivation to plead guilty, huh? What about the long trial should be the motivation to find the truth and to ensure justice and fairness?

So, it's okay for us to tell the "offenders" - why are we calling them "offenders" when they are not yet convicted? - "you should plead guilty for a 50% discount of the punishment or otherwise we would subject you to a long trial?" So the long trial is a deterrent to pleading not guilty?

How warped!

I really don't know what to say anymore.

25 comments:

hari said...

The CJ got influenced by the police whom are currently sentencing traffic offenders with a 50% discount. So if I rape a girl will the mandatory 5 year sentence be reduced to 2.5 years with 1/3 remission to boot. wah greatlah CJ.

CJ does not know about the principles of sentencing coz he does not have any to start with.

Aiyo, now the first year law students will be confused...

Cruzeiro said...

Sounds a lot like how the Pope was "selling indulgences" to "sinners" prior to the reformation, which incensed Martin Luther.
But have yet to find any "Lutheran" in the legal fraternity, isn't it?

Anonymous said...

Now this idea is a classic example of the state of the Malaysian judiciary. That's Malaysian justice for you! What else can be said about the guy who suggested it?

nah-nah

Anonymous said...

If the CJ 's idea works - backlog cleared - then we don't need that many judges anymore

Perhaps then we can rid off the judges who aren't doing a good job anyway

50% of them...From the Top down....

Cruise

Anonymous said...

Perhaps this is with Kes Toyol in mind?

He PG get 50% discount, He PG before trial starts another 30%, then 1/3 remission so effectively about 2 plus plus months of jail term.

My maths is soo off.

Seriously, though, the idea is an abomination of the whole "Presumed Innocent" principle.

But then again, this is 1Malaysia Truly Asia we are talking about.

Anonymous said...

way to go to fulfil KPI !

siewchinteo said...

the lines that separate the powers can no longer be blurred cos they are completedly obliterated!!!
such a shame.

yezdi said...

Yes, its geting odder and odder, as Alice may have said in Wonderland. However, this will be very useful to the current batch of pirates if they face justice one day.

Extending this line of logic, how about quarter sentence if the accused surrenders before he is caught. If a murderer see the cops closing in, slips away, and surrenders himself at a police station...

Fi-sha said...

Dear Art

Is CJ trying to emulate goodwill of traffic police? 50% discount! Or is it part of Msia's Year End Sale ("YES") since Budget 2011 poised to make Msia a shopping haven.

Suddenly, i saw a scene from Ali Baba Bujang Lapuk (slaves lelong scene) with Saloma singing "Tiru Macam Saya".

OK, I shall cry for now....

donplaypuks® said...
This comment has been removed by the author.
donplaypuks® said...

Maybe our brilliant CJ can also come up with a frequent criminal points redemption/discount system - Buy 1, Free 1 !! Lol

dpp
we are all of 1 Race, the Human Race

AnesthMO said...

You did not touch on the next part of the CJ's speech. He said that if the accused refuse to plea bargain and found guilty at trial, the sentence then cannot be appealed.
This situation is abbhorrent because there is no justice in this proposed system; just the CJ trying to achieve an arbitrary KPI.

Anonymous said...

I like it - Hung till half dead! It will be a steak house option - raw, medium or well done! Malaysia Judiciary has Class!

Anonymous said...

Does Zaki Azmi think that speed is everything in dispensing justice? Its okay if you are talking about traffic offences, or minor theft (stealing from a supermarket?, but Zaki wants this to apply to murder, too? He needs a head check (his head, that is).

sri hartamas

Anonymous said...

Art,

The next time a rapist charge in court can plead that he only manage to penetrate half of his penis length and saving the court time by pleading guilty he should be punish only a quarter of the punishment.

But he is also a strong UMNO supporter and should be given additional 30 percent discount.

Finally he will say that he should be a free man as a Toyol a fat lady would die if he could not supply his special tempe that change the colour of the skin.

Anonymous said...

What percentage of the population would uncompromisingly call a spade a spade including you and your commentators here, Art?

At best 10% if you are lucky. So for sure the 90% would call a spade a hatchet on seeing one.

Why is that? I don't know because it's a very complicated social (?) matter to elucidate in which only those in power are apparently well versed.

But expediently for sure he's an UMNO totokman and the snaps is around the corner and it looks like he knows the weaknesses of men/women (also to make it look good in his KPIs, at all costs, as though PEMANDU c/o PM give two hoots).

There's a saying that leaders are as good as the people who elect them. If they are corrupt,lazy, incompetent and what have you, and so do are we. So don't just blame the leaders.

So how would I categorise myself you might ask? Well, without too much lifting myself on a basket I think I'm a spade is a spade man, but sadly though I've very few friends.

Do you have many friends Art?

mat royan

Anonymous said...

Mediation and "Witness Statement" are another blatant bullsh*t!

Mediation is also used to pressure the parties to settle the case. Hence, reduce the numbers of backlogged.

Witness statement? My foot! Shall we rename it to "Counsel's Statement"?

Anonymous said...

I don't know the law that much. It seems that the CJ is not any better. Stealing a pair of slippers and RM100 million get same sentence? I guess from here on all those petty thieves will be upgrading themselves.

Anonymous said...

s'pore was spot on when they said all the malays leaders are stupid...

Anonymous said...

hahahahhah, still can not stop laughing, look like our CJ is a true business man, just like jaya jusco, at year end sales the barang that can not sales all half price, 50%mah, sure got demand, but the unfortunately CJ is not in the sales business, we are dealing with human life, people seeking Justice and hardcore criminal, the CJ must be a fool talking like at idiot.

What next the shariah court cutting half cock?

Malaysia is down the drain my friend, let get out, before we are corrupted too.

Anonymous said...

Art,

I think you have left out the key word "LAZINESS" which best describes this warped idea of the CJ. Years ago, my parents reminded me that some particular race are just plain "LAZY" to work for a living and this particular race is contented to live off the other races. My parents advised me not to emulate this particular race's mentality and I should instead work hard and strive to be self independent for my own self esteem. I guess the CJ's parents did not give him the same advice as what my parents gave me.

Anonymous said...

Ha..ha...ha....this 1Malaysia is really haywire.Where can you find a country like us...sentencing can be discounted ..eh..eh...just like the summonses? Then, we have a PM who keeps numb about the wikileaks that dragged his name to a murder but blacked it out from the mainstream media...and never bother to challenge all the accusers to clear his name???? I wish he's charged and then pleads guilty and get 50% discount of the sentencing....awesome right?

Anonymous said...

Like that also can ah ? No wonder some policemen decided that to save the tax payers money in the form of court case, prison space and never ending trial with lawyers arguing on technicality etc. just shoot them well.

Dead men tell no tale. Everyone is learning real fast in whatever way possible to clear backlog. That is not the way out. If you as a member of the bench cannot dispense justice with fairness and impartial, please do not take up that office's offer.

Choose another more meaningful job instead. For we have witness too many "monkeys" making non sensible statements in recent days both in court and Parliament as well.

Anonymous said...

Makes you want to consider a life of crime

Anonymous said...

You said...."This is the problem when people who are running a certain essential arm of the country's administration are missing the concept, either out of sheer shallowness, deep inability to rationalise or non-understanding of the underlying reasoning for a certain act, rules or law."

Or maybe it's just vindication of the Malaysian education system?