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.
It is, therefore, apposite to know the salient features of the operation of plea bargaining as set out in Act A1378:
> Plea bargaining is allowed in all offences regardless of their gravity, including offences which carry the mandatory death sentence. In India, for example, plea bargaining is not permitted for offences which carry the punishment of death or life imprisonment or imprisonment for a term exceeding seven years or offences affecting the socio-economic condition of the country or offences committed against a woman or a child below 14 years old.
> Once the accused has made an application for plea bargaining, the court will then examine him in camera (in private without public access), whether the application is made voluntarily. If it is not done voluntarily, the application will be dismissed and the case will proceed for trial before another judge.
If it is done voluntarily, then the agreement will be reduced into writing and signed by the accused, his counsel if he is represented and the public prosecutor.
> The court will then dispose the case in this manner. If the agreed bargain is in relation to the charge, the court will find the accused guilty on the charge agreed by the parties and sentence the accused accordingly.
If the agreed bargain relates to the sentence, the court will find the accused guilty on the charge and sentence the accused to not more than half of the maximum punishment prescribed for the offence for which the accused has been convicted, provided that where there is a minimum term of imprisonment required under the law for the offence, the convicted accused shall not be sentenced to a lesser imprisonment term than that of the minimum term.
> Before the Court passes any sentence, the court has to call upon the victim of the offence or any member of the victim’s family to make a statement on the impact of the offence committed against the victim or his family.
In sentencing, the court may require the convicted accused to pay the cost of his prosecution as may be agreed by the Public Prosecutor and/or require the convicted accused on the application of the Public Prosecutor to compensate the victim as respects the injury caused to him or his character or loss of his income or property.
> Once the accused has been convicted and sentenced under plea baragaining, there shall be no appeal except to the extent and legality of the sentence.
In the United States, plea bargaining has become so popular that close to 90% of criminal cases there are dealt with by this process rather than by a jury trial. Hence, much has been said about the advantages of plea bargaining, and topping the list are:
> Backlog of cases would become surmountable as it reduces court hearing time as well as saving lawyers and prosecutors’ time.
> Remand and convicted prisoners will not need to languish in jail for too long as waiting time for trials and appeals will be shortened.
> As more accused persons are willing to accept guilt and responsibility, the state will be able to secure more convictions, and hence the public interest is served.
> The victims do not have to relive the horrors of their ordeal in the presence of the accused and the press.
> As the plea bargaining process is a simple one, it is not critical for the accused to be legally represented and thus, they would save on having to pay lawyers’ fees.
That said, like all other laws in this country, I am nevertheless concerned with its eventual implementation in our criminal justice system. To my mind, I fear that pre-occupation with expeditious disposal of cases and savings of cost and resources will compromise the quality of justice apart from reducing justice to an economic commodity.
In this respect, we ought to take note of what the late US Chief Justice Warren Burger said:
“An affluent society ought not be miserly in support of justice, for economy is not an objective of the system.”
I have two main reservations about Act A1378.
Firstly, the way the new section 172D is drafted, it is intended that an accused involved in plea bargaining is guaranteed to receive at least 50% “discount” on the maximum punishment prescribed for the relevant offence.
Unlike section 265E of the Indian Code of Criminal Procedure, which our new section 172D is modelled upon, the verb “may” does not appear before the word “sentence” in the latter; thus, removing any judicial discretion in sentencing especially of a convicted accused of serious crimes to more than half of the maximum punishment.
As plea bargaining is applicable to all offences, including serious and heinous ones, it is my view that this new piece of legislation is too pro-accused and overly magnanimous to him. This leniency will only result in convicted criminals of serious crimes escaping the full punishment of law, apart from removing the deterrent effect of the sentence which is prejudicial to the criminal justice system.
It is hoped that more will not be inclined to commit crimes of passion and rage knowing that he can later strike a deal in plea bargain by getting not more than half of the maximum punishment if he pleads guilty.
For example, an accused convicted of general rape, which carries a maximum punishment of 20 years, will not get a jail sentence extending more than 10 years. Similarly, a prosecutor can also offer a lesser sentence like life imprisonment to an accused charged with a crime carrying the death penalty if he pleads guilty.
Secondly, by extending plea bargaining across the board unlike in India, it is envisaged that this will seriously impact the practice of criminal law practitioners since it is not mandatory for an accused to be legally represented in plea bargaining. I am surprised that the Bar Council has not vociferously opposed this, especially when the rice bowl of the lawyers is at stake.
But more importantly, it is feared that many poor innocent accused who cannot afford to engage lawyers may take the easy and convenient way out by pleading guilty and going to jail, though for a shorter term.
Hence, whether plea bargaining will reduce or cause overcrowding in our prisons remains to be seen.
In any event, our authorities must take cognisance of the disadvantages and possible abuses of plea bargaining experienced in countries which practise it, especially in the United States:
> When plea bargaining becomes entrenched in the system as a matter of course, the innocent may not get a fair trial as the judge will expect him to enter plea bargaining, and if convicted he may receive an excessive sentence.
> Coercion, whether subtle or blatant, may be applied on the innocent to enter plea bargaining. Those who can be acquitted due to lack of evidence or the innocent will often plead guilty out of fear of much harsher punishment, especially if the prosecutor threatens and throws in all sorts of imaginable charges against them.
This is not in consonance with the fundamental principle of being innocent until proven guilty by the prosecution beyond reasonable doubt in an adversarial system of criminal justice.
In this respect, this may not necessarily reduce the costs of administering justice, for without plea bargaining, the prosecution will more likely drop the case completely in lieu of sending the accused to jail for a short term.
> Prosecutors, lawyers and judges may have various conflicting interests and inducements to resort to plea bargaining. Albert W. Alschuler wrote in Guilty Plea: Plea Bargaining in Encyclopedia of Crime and Justice (1983) that prosecutors can be influenced during plea bargaining by various personal reasons such as laziness, career advancement and desires to be liked by co-workers and to have a good conviction rate.
The defence counsel may find it more expedient financially to spend less time on the case by encouraging clients to enter plea bargaining, especially those who may not afford to pay them any more additional legal fees.
Defence counsel may also find it more beneficial to maintain a good relationship with the prosecutor for the sake of their practice and their future clients by not being too difficult or “rocking the boat” with the prosecutor when negotiating a plea bargain deal regarding the present client.
The judge is also motivated by the same personal reasons apart from having to prove his ability in disposing as many cases as possible in the shortest possible time.
> Alschuler also wrote that the flexibility in the plea bargaining system can encourage the introduction of corrupt considerations into the administration of justice.
In other words, the interest of the victims and public become subservient to corrupt public officials dealing with wealthy and powerful politicians and kingpins of organised crime. If so, Oliver Goldsmith has indeed put it most aptly, “Laws grind the poor, and rich men rule the law!”
> In some states of United States where plea bargaining has been discontinued, Robert Bidinotto, a strong critic of the American criminal justice system, wrote in Subverting Justice, Criminal Justice? The Legal System vs. Individual Responsibility, Foundation for Economic Education (1994) that he found:
“…ending plea bargaining has put responsibility back into every level of the system: police did better investigating; prosecutors and lawyers began preparing their cases better; lazy judges were compelled to spend more time in court and control their calendars more efficiently. Most importantly, justice was served and criminals began to realise that they could not continue their arrogant manipulation of a paper-tiger court system.”
Bidinotto went on to argue that the key was for prosecutors to screen cases carefully before the accused were charged, adding that faced with air-tight cases against them, the guilty accused would simply throw in the towel and plead guilty, anyway.
I must conclude that I am not cynical about the proposed plea bargaining. I sincerely hope as much as many proponents of this system that when implementing it, the authorities will always bear in mind its possible abuses so that it will become more advantageous than disadvantageous for all the stakeholders in our criminal justice system to practise it.
Roger Tan is a senior lawyer and a former member of the Malaysian Bar Council. He can be contacted via Twitter @rogertankm.
LB: First Published in The Sunday Star on 19 December 2010 and the author’s blog Voice of Reason.