A bargain for justice

The authorities must always bear in mind that when implementing plea bargaining, the system is open to possible abuses. It is important to ensure the system is more advantageous than disadvantageous for all the stakeholders in our criminal justice system to practise it.

CHIEF Justice Tun Zaki Azmi announced on Monday that plea bargaining will be implemented soon. The plea bargaining will allow those who plead guilty to serve a prison term which is not more than half of the maximum punishment imposed under the law for the offence for which an accused has been convicted.

This is made possible after Parliament passed the Criminal Procedure Code (Amendment) Act 2010 (Act A1378). Royal assent was obtained on June 2, and Act A1378 was gazetted on June 10. It will now come into operation on the date to be fixed by Home Minister Datuk Seri Hishammuddin Tun Hussein.

What then is a plea bargain? In simple terms, it is an agreement reached after negotiation between the prosecutor and the accused in a criminal case whereby, if the accused agrees to plead guilty, the prosecutor will reduce the original criminal charge to a lesser charge or withdraw any other remaining charges or the accused will receive a lighter sentence if he faces the original criminal charge.

It is said that plea bargaining existed as far back as 1485 involving an English statute prohibiting unlawful hunting. The statute stated that an accused would be convicted only of a summary offence if he pleaded guilty; otherwise, he would be charged with a felony offence punishable by imprisonment.

In Malaysia, plea bargaining hitherto is done in an indirect way whereby the accused’s counsel will make representation to the Public Prosecutor to reduce the charge, for example, from a murder charge to a charge of culpable homicide not amounting to murder if the accused pleads guilty.

However, the court is not involved in this process, and sentencing remains the sole prerogative of the presiding judge. As put trenchantly by Justice Wan Yahya in New Tuck Shen v Public Prosecutor (1982):

“This court does not consider it bound by the private bargaining between the prosecution and the defence in respect of which bargaining it is not a party and in which it has been judicially prohibited to participate. The right to impose punishment on a guilty party is absolutely the discretion of the court. It will exercise that power judicially but will not tolerate any encroachment or even semblance of encroachment either by the prosecution or the defence in respect of such right.

“An agreement between the prosecution and the defence as to the nature of sentence to be imposed on the accused creates no obligation on the court and is good only for pricking the conscience of the defaulting party.”

In fact, this is still the current position practised in common law jurisdictions such as England, Canada and Singapore, albeit plea bargaining is now statutorily permitted in Pakistan and India since 1999 and 2006, respectively.

Time to break the impasse

By not confronting racial and religious issues, civil court judges have abdicated their duty to uphold the people’s constitutional rights to equality and freedom of religion.

ON Nov 12, much to the dismay of many Malaysians, the Federal Court declined to answer five constitutional questions of public importance on unilateral conversion of children to Islam by one parent who has embraced Islam.

The case involved Shamala Sathiyaseelan, 38, and Dr Jeyaganesh Mogarajah, 42. The couple were married on Nov 5, 1998 according to Hindu rites in Alor Setar and the marriage was registered under the Law Reform (Marriage and Divorce) Act, 1976 (Act 164). Their sons, Saktiswaran and Theiviswaran – born in 1999 and 2001 – were Hindus at the time of their birth.

On Nov 19, 2002, Jeyaganesh converted to Islam. As a ‘saudara baru’ or muallaf, he is known as Muhammad Ridzwan bin Mogarajah. On Nov 25, 2002, Jeyaganesh converted the two minors to Islam without the knowledge or consent of Shamala. Saktiswaran’s Muslim name is Muhammad Firdaus Jeya while Theiviswaran is named Muhammad Asraf Jeya.

Shamala then went to the Kuala Lumpur High Court to challenge the conversions and seek custody of the minors. Justice Faiza Tamby Chik held on April 13, 2004 that since the two minors were now muallafs, Shamala should take them to Majlis Agama Islam Wilayah Persekutuan for help and advice to resolve the issue because under Article 121(1A) of the Federal Constitution, the civil court had no competency to determine the status of the minors’ conversion.

Meanwhile, Jeyaganesh had also obtained hadhanah (custody) of the two minors from the Mahkamah Tinggi Syariah Selangor on May 8, 2003. However, on July 20, 2004, in addition to an interim order made earlier in favour of Shamala on April 17, 2003, the High Court granted Shamala ‘actual custody’ or actual care and control, and the husband, ‘legal custody’ of the children.

Appreciation Dinner for Putik Lada Contributors (15 Oct 2010)

Written by Sumitra Penesar. Reproduced from Malaysian Bar Website

On 15 Oct 2010, the National Young Lawyers Committee (“NYLC”) of the Malaysian Bar Council hosted a dinner at Aliyaa Restaurant & Bar, Damansara Heights, in honour of all Putik Lada column contributors. Putik Lada (which means pepper buds in Malay), a fortnightly column in The Star, is a platform for young lawyers to articulate their views and aspirations about the law, justice and a civil society.

Roger Tan:: Not a question of loyalty (Expanded Version)

Malaysians who live, work or study in Singapore should not be regarded as disloyal to their own country.

LIKE many Malaysians, I am naturally proud of ex-Muar High School boy Tan Zhongshan’s extraordinary academic feat (“Malaysian is top law student at Cambridge University”, The Star, Oct 19).

By chalking up the record as the overall best law student in the entire Cambridge University, his performance has probably even surpassed that of the university’s luminary alumni like Singapore’s Minister Mentor Lee Kuan Yew and his late wife.

Tan is but one of the thousands of young and bright Chinese Malaysians who have received scholarships from the Singapore government to study at different levels from secondary one to university in the city state.

It is no secret that Singapore officials would only recruit the “cream among the crop” for this purpose and those who excel will be sent to Oxbridge colleges and the Ivy League universities. Upon graduation, they would be bonded to work for a number of years in Singapore or elsewhere in Singapore-owned corporations. By then, most will not return to Malaysia.

Needless to say, many such children from poor families who were unable to get state aid in Malaysia have benefited immensely from this financial assistance. In return, they generally feel grateful to the Singapore government.

In Tan’s case, he said he would join the Singapore legal service. This is another achievement because only the very best of law graduates would be selected to join the Singapore judicial and legal services. It is also financially rewarding considering that a Singapore High Court judge is said to draw an annual salary inclusive of perks amounting to about S$1mil (RM2.4mil).

However, one has to take up Singapore citizenship if he aspires to become a judge or hold a senior position in their legal service.

This reminds me of my own experience. Unable to get financial aid from the state, my family had to privately finance my law studies in England. At that time, the then British government had begun imposing full-cost fees on foreign students as well as prohibiting them from seeking employment while studying there.

I wrote to Prime Minister Margaret Thatcher telling her that the common wealth of the Commonwealth ought to be commonly shared! I did receive a reply from the British Department of Education and Science on her behalf justifying the new policy on the grounds of national interest.