Contributed by Rajeswari Gunarasa, Officer, Criminal Law Committee; and photos by Florence Laway, Administrative Assistant, Md Faizal Mahat and Satha Selvan Subramaniam, Senior Administrative Assistants, Bar Council
The Bar Council Criminal Law Committee (“CLC”) organised a dialogue on issues relating to the establishment of a sentencing council in Malaysia, at the Raja Aziz Addruse Auditorium, Bar Council on 5 Mar 2013. It is envisioned that the sentencing council would develop sentencing guidelines, which would promote consistency in sentencing and thus enhance the administration of justice. Such an institution exists, for example, in Australia, the United Kingdom, and the United States. The dialogue was moderated by Rajpal Singh, Chairperson of CLC.
The dialogue was attended by Members of the Bar, members of the Judiciary, Attorney General’s Chambers, non–governmental organisations, members of the public, the press and university students. The Victoria and Tasmania Sentencing Advisory Council Chairman, Professor Arie Freiberg; the then–President of the Malaysian Bar, Lim Chee Wee; Court of Appeal Judge YA Dato’ Azahar b Mohamed and senior criminal law practitioner V Sithambaram made presentations to some 150 people.
The de facto law minister Dato’ Seri Mohd Nazri Abdul Aziz graciously agreed to be the guest of honour for this event. In his keynote address, he said the Government is looking at establishing a sentencing council that plays an advisory role.
He said that a sentencing council should:
(1) provide guidelines to reduce the disparity of sentences meted out by the courts (while respecting the independence of the Judiciary) and assist the judges in the practice of sentencing;
(2) serve an advisory function and should not be viewed as a body with powers to review the decisions of the courts;
(3) ensure that justice is provided to all, including the victim and perpetrator of a crime, with a sentence that commensurate with the crime committed; and
(4) seek guidance from the experts and step up research on the area.
He hoped that the dialogue session would bring about productive changes. After concluding his speech, Dato’ Seri Mohd Nazri Abdul Aziz held a press conference at Bar Council.
The next speech was delivered by Lim Chee Wee. He spoke passionately on the need for setting up a sentencing council in Malaysia. He said that the Malaysian Bar welcomed the Government’s three proposals of law reform involving sentencing and is encouraged by Dato’ Seri Mohd Nazri Abdul Aziz’s announcement that the Government is agreeable in principle to the establishment of a sentencing council.
Lim Chee Wee also commented that the proposed amendment to the Dangerous Drugs Act 1952 is to give judges the discretion of not imposing death sentences on couriers. One of the suggestions is to allow those on death sentence to be referred back to the courts, with legal representation, to be re–sentenced.
Lim Chee Wee also said that Dato’ Seri Mohd Nazri Abdul Aziz is leading a cross–party initiative to abolish death penalty. An initial step being considered is to scrap the death penalty for drug offences and move the Malaysian Cabinet to defer the death sentences passed on 675 convicted drug traffickers in the country, while the Government reviews the death penalty for drug offences. Such a moratorium, he added, would put Malaysia in the right path to the abolition of the death penalty in due course.
He also asked if Dato’ Seri Mohd Nazri Abdul Aziz could persuade the Prime Minister to make the abolition of the death penalty a part of the Prime Minister’s campaign manifesto. There is precedent for this — when François Mitterrand campaigned for the presidency of France in 1981, he made the abolition of the death penalty a part of his campaign. When he became president, France abolished the death penalty.
Lim Chee Wee pointed out that recent sentences are perceived to be inconsistent and disproportionate to the seriousness of offences. The four aims of sentencing are retribution, deterrence, rehabilitation and incapacitation, and finding the right balance between them is never easy. As such, establishing the sentencing council would help solve this difficulty.
This much–needed discussion on establishing a sentencing council, he said, arose from the public uproar over the statutory rape cases late last year and the proposed amendments to section 294 of the Criminal Procedure Code to limit judges’ discretionary powers.
The event had the distinct honour of having Professor Arie as guest speaker. Professor Freiberg gave an overview of the role of various sentencing councils. He stressed the importance of having greater dissemination of knowledge on sentencing processes.
According to him, although the sentencing council is primarily concerned with formulating sentencing guidelines, it may also conduct research and educate the public on sentencing policies and practices, and bridge the gap between the community, the justice system and the government.
YA Dato’ Azahar b Mohamed stressed the importance of striking a balance between the interest of the public and the interest of the accused person when making decisions. His Lordship reiterated that sentencing guidelines would assist the courts in becoming consistent in sentencing.
His Lordship also made special reference to the Bench Book and Practice Direction 2/2012, which set out sentencing guidelines for serious offences. YA Dato’ Azahar b Mohamed concluded his speech by encouraging a spirit for continuous improvement and stating that a sentencing advisory council is a step in the right direction. However, His Lordship maintained that the final decision on sentencing should remain with the Judiciary.
The final talk was given by V Sithambaram. At the outset, he stressed on the immediate need for the Malaysian courts to be consistent in sentencing. He agreed with the notion of preserving judicial independence in sentencing and suggested that any guidelines developed must be consistent with it.
V Sithambaram presented a comparative study on various sentencing councils, including experiences from Australia, New Zealand, the United Kingdom and the United States. Drawing from the examples of the challenges faced by various sentencing councils, V Sithambaram suggested that the United Kingdom model might provide a potential framework for Malaysia. He concluded by saying that “No guideline is infallible, and the ultimate responsibility in sentencing remains with the judges”.
The dialogue ended at 5:30 pm.