©The
Sun (Used by permission)
by N. Sivananthan
IT is always said that there must be sufficient incentive for an accused person to plead guilty, that is if he is guilty he does not claim trial and tax a system which is already tearing at its seams. The incentive is usually a reduction in sentence, sparing of the rotan, a lower fine, etc.
One incident, however, had quite the opposite effect. I was in court one morning when an accused charged under the Dangerous Drugs Act with a capital offence had the charge read out to him. He was unrepresented and the Deputy Public Prosecutor and the presiding judge were busy with their own thoughts wanting to dispose of the matter and to perhaps move on to other things. It did not help that it happened to be a Friday.
The interpreter was mechanically reading the charge to the accused and was about to return to her table after the usual plea to claim trial when a sudden silence descended upon the courtroom.
Guilty, Yang Arif, the accused said.
By now everyone was alert and there were already a few smiling faces in court and I was all ears. The judge looked at the DPP to seek his views and he received an incoherent reply. The judge then did what any sensible judge would do.
Next date! he said. The case was then adjourned for six months.
The criminal justice system unfortunately accords no justice for people charged with offences which are not bailable. Generally these are offences which carry the death penalty and certain drug–related offences which only carry a term of imprisonment.
These individuals languish for up to five years waiting for their trials to be concluded and if they do get acquitted at the end of it all, it still means that they have been incarcerated for up to five years. Whatever standing they have in civil society would probably have been irretrievably damaged besides the physical and psychological trauma they would have had to endure whilst in prison.
It’s a terrible thought. Just imagine if you were a truly innocent person who for one reason or the other happened to be charged for an offence which is not bailable. Your life essentially comes to a standstill and unfortunately whilst the law presumes you innocent until proven guilty, society tends to look at things the other way around.
What makes it even more comical is that even a person charged with manslaughter – 2nd or 3rd degree murder – is eligible to be bailed as opposed to someone having in his possession more than 50gm of cannabis. Think about it, 50gm of cannabis compared to the life of a human being or 50gm of cannabis compared to someone who has committed rape, snatch theft, armed robbery, etc. The list goes on.
We have also had unfortunate developments in our preventive laws – detention without trial. Previously all steps taken by the police prior to the issuance of a detention order was subject to scrutiny by the court but in two recent Federal Court decisions it was decided that any illegality on the part of the police was no longer justiciable – once the detention order was issued, any prior illegality was no longer the concern of the court. Strange but true!
The absence of legal aid for accused persons save for those charged with capital offences also reminds me that criminal justice is now inextricably tied to financial means. Unfortunately, the adversarial system of justice demands that the court is concerned only with the issues before it. The competency or otherwise of counsel is of no concern.
I have had occasion to see an accused person plead guilty whilst maintaining he did not actually commit the crime simply because he could not raise bail (forget about engaging counsel) and that his stay in prison already exceeded what he would likely get in respect of a prison term.
Many developed nations maintain a legal aid system on the basis that the lack of access to adequate representation is equal to having no representation at all. Perhaps the new year will see measures introduced to address these concerns and that in our unrelenting quest to becoming a developed nation, basic human rights are not forgotten especially that of the accused person.
N. Sivananthan is a senior criminal lawyer and chairman of the Criminal Practice Committee of the Kuala Lumpur Bar. He is the first Malaysian to be admitted to the List of Defence Counsel of the International Criminal Court at The Hague and recently was elected to the Council of the International Criminal Bar during its General Assembly in New York.