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Not another mandatory jail term, please

Thursday, 02 February 2012 02:10pm

©The Star (Used by permission)

QUESTION TIME By P. GUNASEGARAM

It’s time we got rid of mandatory sentences, starting with the death sentence.THERE’S one thing terribly wrong with mandatory sentences – it takes away the discretion of judges to, well, judiciously weigh the gravity of the offence before imposing punishment.

They can’t consider the circumstances under which it was committed, take into account mitigating circumstances or see whether the public good will be better served by meting out a lighter or heavier sentence, to mention but just a few factors they should consider.

Instead, mandatory sentencing requires judges to mete out a prescribed minimum punishment, no matter what, if a person is found guilty of an offence under a certain law.

To illustrate, if the police found a bullet in your house and then charged you under the appropriate law, you would get the death sentence if you were found guilty. Ditto if you have more than a certain amount of marijuana in your possession.

There are also mandatory jail sentences. For instance, an offence under the Official Secrets Act (OSA) will guarantee you a minimum of a year in jail. This particular law was changed to allow for a mandatory jail sentence after a journalist found guilty under the Act in the 1980s was let off with a fine.

As if mandatory sentences such as death and a minimum jail sentence were not enough for these offences, there are some who are now proposing a mandatory jail sentence for those who have carelessly caused accidents that have resulted in death.

This is not likely to deal with the underlying problem, which is an increasing number of fatalities on the road. The misguided hope is that making punishment severe will make fewer people commit the “crime”. But we are talking about accidents here.

Let’s look at some of the laws we already have which provide for mandatory sentences. If you discharge a firearm in the commission of a crime and you get caught, you are dead, so to speak, even if no one was injured, even if you fired it in the air.

A single bullet found in your possession in a “security” area would mean the mandatory death sentence upon conviction under the relevant law.

If you have more than a prescribed quantity of marijuana in your possession, or any other designated drug for that matter, you will have the death sentence imposed on you even if you can prove that the drug was meant only for your consumption and that you were not trafficking.

The law does not differentiate between what kind of drug you were pushing – whe-ther it was physically addictive or not. Most medical experts are of the opinion that marijuana is not physically addictive and does not cause severe withdrawal symptoms when you don’t take it, like the opiates do.

But the courts can’t take these factors into account when they mete out sentence. If they find you guilty, they must hand down the death sentence. Period.

For all the tough laws we have against so-called traffickers, we have many drug addicts, and anyone who wants to take drugs in Malaysia can easily find them. Those who get caught are too low down the ladder to be of consequence, and busting of drug syndicates is far and few in between.

It’s not that our laws are inadequate or too lenient, it’s that enforcement is rather poor. That makes the chances of getting caught so remote that many are prepared to take their chances with the law.

You can have the severest laws but they will be no deterrent without enforcement. You can have just laws with sufficient leeway for judicial discretion by a well-qualified and honest judiciary backed up by efficient and unbiased enforcement and prosecution, with far greater deterrence without being cruel.

To see if mandatory jail terms for traffic offences are justified, one has to merely go back to the root of the problem. Is our licensing system for new drivers efficient and clean? If it was, why do we still talk about kopi-o licen-ces?

Are our traffic cops clean, efficient and trustworthy? If they are, why is everyone I know talking at one time or another about that speed-trap or roadblock round the corner as a money-making scheme for those manning them? And why do we look with such derision at those manning them?

Why do we have rising fatalities on the roads? Because we have a lot of drivers out there who don’t really qualify to drive. Because speed limits and traffic regulations are not being enforced and miscreants often get away by paying a little money to those who are willing to take it.

Because those in power talk a lot about these things but do little to get to the root cause – proper licensing and enforcement. And yes, because some talk about mandatory jail sentences for those who cause accidental death on roads instead of enforcement.

One question: If a driver of an express bus had many convictions and still had a licence, was still permitted to drive in spite of drug offences and crashed the not-roadworthy bus and killed many people, who should go to jail?

The driver, the express bus owner, a Puspakom (the body which inspects vehicles) official, a Road Transport Department official or all of them plus a few more for good mea-sure?

We should get rid of all laws with mandatory sentences, starting with those which prescribe mandatory death sentences. No, no mandatory jail sentences for road accidents please when there are already provisions for prison terms in the existing legislation. Why tie the hands of judges?

P. Gunasegaram (t.p.guna@gmail.com) says that in this instance, discretion is certainly the better part of valour.

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