Plea bargain – the Malaysian way

Art Harun

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!