The government was also urged to prevent abuse of the remand process and to give judges discretion to impose whipping on those convicted of multiple offences.
The suggestions were made by lawyers responding to the setting up of a committee led by a Federal Court judge to review the Penal Code, the Criminal Procedure Code and the Evidence Act in efforts to enhance the criminal justice system.
A senior lawyer, N Sivananthan suggested that a transparent procedure be put in place for plea bargains to work effectively and help in the speedy disposal of criminal cases.
Cumbersome process
“At the moment, plea bargaining is cumbersome and bogged down by red tape. We can only negotiate the charge but not on the proposed sentence,” he said.
He suggested that the prosecution and the defence lawyer be allowed to negotiate on the charge and the proposed sentence to be imposed. “Once finalised, they could record a judgment before the court,” he said.
Sivananthan said such a fair and equitable practice, as done in the United Kingdom, would result in saving judicial time and resources and help clear the backlog of cases, especially in lower courts, without the need for lengthy trials.
Witness statements
Salim Bashir, a former Bar president, said statements from prosecution witnesses should be supplied on request when the accused is ordered to enter a defence to the charge.
Salim, a former co-chairman of the Bar Council criminal law committee, said having the statements would put the accused on an equal playing field with the prosecution.
Under current procedure, statements recorded during the investigation are deemed privileged documents, and defence lawyers have to interview witnesses offered by the prosecution before deciding whether to call them to testify for the accused.
“The right to a fair trial is a constitutional right of an accused to raise an effective defence to absolve themselves from criminal liability,” he said.
Disclosure of facts
Another lawyer, Low Wei Loke, called for compulsory disclosure of facts that support the accused’s case. Should such facts be found to be suppressed, then an adverse inference must be drawn against the prosecution.
“There is a recent High Court ruling to that effect, but there are also a few Federal Court decisions that state it is not mandatory to reveal such facts,” he added.
In February, High Court judge K Muniandy ruled that disclosure of such facts before a trial begins would place the accused and the prosecution on equal footing.
Whipping for multiple offences
KA Ramu said judges should be given the discretion to allow whipping of those convicted of multiple offences.
He said last year, the Federal Court held in a 2-1 ruling that a sentence of flogging could not be made either concurrent or consecutive, as Parliament did not make its intention clear on that matter.
However, Justice Nallini Pathmanathan in her dissenting judgment said that whether whipping should be imposed concurrently or consecutively must take into consideration elements of fairness and proportionality.
On the remand process
Rafique Rashid Ali said the remand process should be tightened to prevent abuse by police, especially when it comes to cybercrimes.
“There is no need to detain a suspect for investigation once a laptop or mobile phone is seized, unless the police could show there could be tampering of evidence or witnesses,” he said.
Rafique said the principle that a suspect is deemed innocent until proven guilty would be violated if a magistrate allows a remand application that could last up to seven days for such cases.
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The 25-member committee to review the criminal justice system is led by Federal Court judge Harmindar Singh Dhaliwal. The committee has 18 months to complete its task and prepare a report for the government’s action. It is also scheduled to hold town hall meetings to obtain public views. - FMT
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