They say it is unjust to hold accused persons to remain in remand while awaiting the commencement of their trials.
The lawyers also recommend that more judges be appointed and called for the prosecutors to scrutinise the evidence before framing charges to ensure they are able to secure convictions.
This, they said, would encourage more accused persons to plead guilty.
Lawyer Salim Bashir said every accused person has an inalienable right to a speedy trial, more so in capital punishment cases where bail has been denied.
“The judiciary may have devoted considerable efforts in reducing the number of trials that have been delayed. Nonetheless, it would still be worthwhile to increase the number of criminal courts and the pool of judges available to hear cases in all states,” said Salim, a former co-chairman of the Bar Council’s criminal law committee.
He was speaking to FMT following complaints from criminal law practitioners about significant delays in their clients’ trials, particularly in cases involving murder and trafficking charges that carry either the death penalty or lengthy prison sentences.
In the Kuala Lumpur and Shah Alam High Courts, the trials of accused persons charged in 2023 or last year have been scheduled to begin only in the third quarter of 2027.
FMT understands that two criminal courts in Kuala Lumpur are presently vacant following the retirement of one judge and the promotion of another.
In Shah Alam, seven judges currently hear criminal cases but this appears to be insufficient due to the volume of new cases being registered.
Salim, a former Malaysian Bar president, suggested that judges currently assigned to the civil courts be also roped in to preside over criminal trials.
“The judiciary could utilise the expertise and the experience of judges who were formerly deputy public prosecutors and criminal law practitioners to dispose of these cases,” he said.
He also suggested that stenographers be appointed to take verbatim notes of proceedings for the quicker disposal of cases.
Counsel S Paul Krishnaraja said prosecutors must prefer lesser charges that carry lower jail terms if the investigation papers reveal that there is insufficient evidence to justify a more serious offence.
For example, he said an accused could be charged with culpable homicide not amounting to murder, which carries a jail term of up to 30 years, rather than for murder, for which the punishment is death or up to 40 years in prison and not less than 12 strokes of the rotan.
“A prudent lawyer will likely advise his client to plead guilty to the lesser charge to take advantage of the lighter sentence on offer and save the court’s time and resources,” said the criminal law practitioner of almost 30 years standing.
Krishnaraja, said such a move would also reduce the need for the AGC to deal with representations seeking a reduction in the charges brought, another reason that contributes to delays.
The lawyer said often it is left to the trial court to reduce a charge at the close of a case after finding that the prosecution has been unable to prove all the ingredients of the offence for which an accused has been charged.
Lawyer Baljit Singh Sidhu said accused persons charged with trafficking and possession of large quantities of drugs were mostly mules or couriers.
“A better option would be to offer them bail pending the outcome of their trials,” he said.
However, he said Section 41B of the Dangerous Drugs Act 1952, as presently worded, gives the court no discretion when the offence carries the death penalty or a jail sentence of more than five years.
Baljit said the public prosecutor should propose that the government give judges the discretion to offer bail to Malaysians charged with trafficking and possession.
Overcrowding in prisons can only be reduced if the cells are occupied only by convicted prisoners, he said. - FMT
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