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Bar Council: Sentencing Council must be impartial

Tuesday, 05 March 2013 08:21am

©The Star (Used by permission)
by QISHIN TARIQ

KUALA LUMPUR: A Sentencing Council should be an independent body which develops sentencing guidelines for the courts and surveys the public about their expectations of sentencing.

Bar Council chairman Lim Chee Wee said that such a council would be responsible for assessing a wide range of decisions and developing guidelines to promote consistency in sentencing and monitoring the application and use of guidelines.

“Sentencing guidelines are what they say they are, guidelines, and they are not meant to be mandatory,” he told The Star.

“If there is any error in sentencing, it is for the appellate courts to correct it and not the Sentencing Council, which plays no role in the court process save to provide these guidelines.”

Lim said judges recognised that sentencing must be consistent with expectation or it would risk eroding public confidence in the administration of justice.

“A mere collection of sentences for various offences without research serves no purpose other than as past examples.

“Community expectation which must be considered, if not reflected in a sentence, is to be determined by survey and consultation,” he said.

Lim noted that there was a new model in the United States used in non-violent and non-serious drug cases where the accused must accept responsibility for his crime and go through a rehabilitation process such as getting treatment and attending meetings to monitor his progress.

He gets a lighter sentence or no jail time at all for successful participation but goes to jail otherwise.

Lim said a Sentencing Council aimed to reduce public misunderstanding by educating them on the complexities of sentencing as well as increase judges’ understanding of public expectation.

However, some lawyers like Edmund Bon object to such a council, saying it would fetter the court’s discretion.

“Although I acknowledge the guidelines would not be binding, in practical terms, it is meant to influence the sentencing judge,” he said.

He said judges who were less confident or less well-versed in criminal cases may follow the guidelines instead of coming up with their own sentencing to insulate themselves from critique.

Bon cautioned that it would be dangerous to generalise sentencing into a “mathematical formula”.

“With maximum and minimum sentences already provided by law, we should leave sentencing to judges based on the factors set out in cases, coupled with continuous training and education on what to look out for and what to disregard,” he said.

Representatives from the judiciary, the Malaysian Bar, the Attorney-General’s Chambers, civil society groups, universities and foreign experts are meeting today to discuss the merits of such a council.

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