Plea bargaining and the hidden dangers

By K.Siladass

of Lincoln’s Barrister-at-Law of Malaya, Advocate and Solicitor.

On Monday 13 December 2010, the Chief Justice of Malaysia, Tun Zaki Azmi announced that, “accused persons in criminal cases will get 50 per cent reduction from the maximum punishment under the plea bargain system which will be implemented soon”. There was no explanation under which statutory provision this plea bargaining, and the reduction of punishment prescribed by various laws will apply or the types of cases to which the new system may be applicable. However, one thing that was so apparent was the emphasis that this reduction of punishment would help to clear backlog of cases. That gave the impression clearing of backlog of cases was far more important than seeing justice being done. It is in the light of what had been disclosed for the consumption of the pubic that prompted the public to question whether the negative consequences that could arise from such implementation had been considered.

As on 14 December 2010 the public were not informed that the Criminal Procedure (Amendment) Code 2010 (Act A1378) had been passed by Parliament and Royal assent had been obtained on 2 June 2010. The Act A1378 was gazetted on 10 June 2010. And plea bargaining had been given statutory effect; but, has not been implement as yet.

The public must be shocked on learning the fact that the Bar Council had been negotiating or debating about the plea bargaining and was a party to it long before the amendments were introduced in Parliament and duly approved. It is rather odd that such an innovation had been kept away from the scrutiny of the public; for, had it been made public, there would have been representations on the pros and cons on the amendment as it is the public who are directly affected by the crimes that are committed, and they have an interest in the matter of punishment – whether it be severe or lenient.

Aside this, we are not told what would happen to the one-third remission which a convict is entitled to on account of good behaviour. Would half the statutory punishment on pleading guilty mean the one-third remission would still apply. If that is the case crime would seem to be a lucrative enterprise; for, take away half the statutory penalty and one-third remission the convict will be back in society to terrorize the public within a short period of time. Should we be surprised that the next move will be the reduction of the number of strokes?

In fact, SUHAKAM is on record recommending “that a committee be set up comprising all stakeholders to examine the issue of plea bargaining. And we will never understand why this recommendation was ignored.

Plea bargaining may be good but an encouragement to plead guilty with a statutory assurance that the penalty will be halved could lead to other problems. Backlog of cases should not be the sole criteria to encourage plea bargaining but we must also see the kind of protection society will have and how the reduction in penalty will help change the criminals away from the life of crimes. Experience had shown that incarceration alone had not in any way helped to reduce the crime rate. Having said that it will be equally true that reduction of penalty can never be the solution for backlog of cases. The crime rate in the country is in the increase, and there will be more cases clogging the Courts.

It is true that the laws on plea bargaining have been implemented in India and Pakistan.

In India plea bargaining does not apply to all types of cases as there are exceptions. The position in Pakistan is also different; for, although the plea bargaining has been given statutory effect there is no provision to bargain over the penalty: it being the Court’s sole privilege. The Malaysian plea bargaining does not provide any exception, the punishment seems to be general and applies to all cases. The time honoured discretion vested in the Courts had been taken away.

Criminal Procedure (Amendment) Act 2010 (Act A1387) applies to all cases and it is hard to guess whether any consideration was given to domestic crimes, and ever-growing sexual crimes against children, and the menace by snatch thiefs all of which are on the ascending scale, not forgetting the violent nature of the crimes that are constantly committed.

The amendment to the Criminal Procedure Code also enjoins the court to weigh the feelings of the victims. To what extent this will help to balm the damaged feelings of the victims is hard to predict. The gulf between the damaged life of a victim by a criminal act inflicted upon him or her and requiring the victim to make a statement of impact are two different things. We can only, in an artificial way, describe the differences but in real life it is a difficult exercise; for, how could the Court measure the victim’s feeling, actual feeling, over the crime that had resulted in immense loss and suffering?. Damaged life could be objectively analysed; but feelings are infinitely subjective. And what is the purpose of this statement of impact on the victims? Would the Court give any weight to the feelings of the victims; if so, it is not clear. Besides, when it is already statutorily provided that a mandatory reduction of 50% will be available on pleading guilty, what usefulness could be derived from the statement of impact?

If we accept law is rigorous and justice is mercy then we have a unique situation where an accused person buys off mercy by pleading guilty. Hence how does the feeling of the victim come into play? When law and justice had combined to clear the backlog of cases why ask a victim as to what he or she feels about the punishment? Suppose the victim makes a statement how badly his or her life had been affected and nothing in the world would induce him or her to forgive the accused, would the court take that into account before passing sentence? The Court has no power to enhance the sentence. The amendments do not allow any discretion when the accused had pleaded guilty.

Besides, there are criminal syndicates which profit from criminal activities and who have been luring young men and women to join in their unlawful enterprises, especially drug related offences and illegal bettings which are the common areas where the youths have been recruited to be carriers and bookies respectively. These young men and women fresh from schools, are promised of protection from the law as well as security in the event they are imprisoned. The amendments, if implemented, without looking into these kinds of problems would encourage crime syndicates to recruit more young men and women to participate in criminal activities, which could lead to unimaginable social problems.

There could also arise situations where the police investigations too would not be up to the mark; but, the accused who may be a victim of circumstances coaxed into pleading guilty with the promise of the sentence being halved. Or well organised crime syndicates would induce those in their pay-roll to plead guilty so that the principals could escape from law and their identity kept as a secret. This means the police would not be thorough in their investigations for they could induce the accused with the statutory reduction of 50 per cent. The temptation is great and the danger so frightening.

Take the case of an overzealous police officer who having arrested a person on suspicion induces him to plead guilty because the sentence would be halved. This may sound unethical and unthinkable but the possibility cannot be ignored.

Another area which would be the main concern is that by focusing only on the problem of backlog of criminal cases alone we might be ignoring the real danger; for, this may lead to slipshod police investigations, and a licence to overzealous arresting officers to be not diligent in their investigations as they could convince the accused or a suspect, that he could get away with a reduced sentence.

What the learned Chief Justice and those who are involved in this plea bargaining system should do is seek curative panacea to the backlog of criminal cases, not to devise procedures pregnant with far reaching consequences.

Much was discussed and many suggestions were made at the Forum on the Right to an Expeditious and Fair Rrial held in March 2006 organised by SUHAKAM. Some good ideas that were workable were presented but never considered by the Government or those who are interested in expeditiously concluding cases. It is suggested that SUHAKAM’s recommendations should be considered very seriously.

Backlog of criminal cases may be a sign of inefficiency or lack of commitment yet it is not a crime, but, to encourage the plea of guilty with a promise of half the statutory penalty is indeed a bizarre encouragement to commit crimes. This should be avoided at all costs.

What would be the position of our Muslim brethren when charged with an offence under Syariah laws? Although a Muslim will be dealt with under the Syariah Laws for any offence so committed yet it would be an anomaly that there could be different sentences in the country, one is religion and the other secular. This also is not helpful to create the feeling of being a proud Malaysian.

Perhaps the learned Chief Justice, the AG’s Chambers, and the Bar Council, would recall the words of wisdom of the late Chief Justice Hashim Yeop Sani in the case of Public Prosecutor v. H. Chamras Tasaso [1975] 1 MLJ 95 at p. 45 which were as follows:

“At the outset let me say this. I would rather live with arrears and backlog of cases, which is I think a lesser evil, than have cases disposed of with such a speed and in such hurried a fashion as would leave in the minds of the ordinary persons a lingering suspicion that something is not right. Justice must not only be done but must manifestly be seen to be done. This case which I have called for revision is a case in point.”

I hope that the learned Chief Justice and his judges would free themselves from the fear of backlog of criminal cases and give due respect to justice. There are many ways to overcome backlog of criminal cases. As it is, judicial time is being wasted in unproductive matters such as “mention” in civil cases. If the judicial time could be distributed in a more practicable manner, then, criminal cases could be speedily handled. In this context all parties must play their parts effectively. Backlog of cases can never be resolved by mere reduction of punishment. What happens if counsel advises his client, an accused, something like this: “Let us see how the prosecution presents the case. If the evidence is too strong, then, we can start plea bargaining!.” There is nothing in the law to prevent such a development. The time frame affixed for criminal cases for trial in a speedy manner is commendable and in this regard the co-operation from the police is inevitable in furnishing police reports, cautioned statements well in advance and be prepared at the pre-trial conferences. However encouraging to plead guilty alone with a promise of half the statutory penalty is certainly not going to be helpful as it also suggests that crime is a tolerable problem. It would be helpful if children are taught in schools of the evil side of crime from a young age thus help them to develop an attitude against crime.

In the interest of justice and to protect the public from criminal acts that are so rampant now, it would be prudent if the amendments are withheld and the public be invited to submit their representations. Backlog of cases are real but the danger posed by crime syndicates are far more serious and could be the threat to society’s aspiration to carry on with its life free from fear of being hurt; and being hurt badly. Let us not make Malaysia the haven for criminals.