Release prisoners of non-violent crimes under licence

 

Various media articles reported recently suggest to me that the jurisprudence in respect of three propositions which I have advanced in my previous columns are still at an infancy stage.

These are that the sentence which an apex court passes is not final; that prisoners have a constitutional right to be released under licence on terms set by the executive; and that the power of the rulers and heads of state to grant pardons or commute sentences is absolute.

Social justice demands that the legal industry comes to grips with the undeniable fact that our penal laws have become too harsh and oppressive for the times we live in.

There is indeed basis for this. Our criminal laws and processes are premised on an Indian statute from the 19th century. Our Penal Code was enacted in 1936 and is premised on its Indian equivalent which came into force in 1860.

What that means is that over the past 88 years we have tried to shoehorn present day issues into a legal framework comprising concepts and processes first thought up more than 160 years ago.

Following the Federal Court’s pronouncement in the 2018 case of M Indira Gandhi which buried a lorry load of Malaysian cases pronouncing parliamentary supremacy and affirmed the supremacy of the Federal Constitution instead, many penal laws are now at risk of being struck down or amended.

On top of that, more modern-thinking criminologists are also suggesting that those imprisoned for non-violent crimes are constitutionally entitled to be released under licence pursuant to the Prison Act 1955 on terms set out by the minister in charge.

If properly drawn up, those licence terms may involve a variety of remedies which are more beneficial than imprisonment, including the restitution of ill-gotten gains and various types of community service. Such terms will both address the rehabilitative option and benefit the public purse by reducing the costs of housing, feeding and facilitating prisoners, and secure a financial advantage for the state.

Many have questioned my proposal on the assumption that it was made for the benefit of the likes of imprisoned former prime minister Najib Razak.

However, contrary to popular belief, the option to release prisoners under licence is not for the exclusive benefit of the elite. Imagine what benefit such a reprieve would have brought to the children of that poor single mother who pleaded guilty to stealing two packets of Milo and was sentenced to 14 months in jail two years ago.

Such harsh sentences are often sought by prosecutors and handed down by courts as deterrents under old-school principles of law. Also, the reality is that she may have received a much lighter sentence had she been able to afford proper legal representation.

I was heartened to read at the beginning of this month that the home minister has announced his intention to release prisoners by licence pursuant to Section 43. However, I was surprised by his statement that it would only apply to prisoners serving jail terms of four years or less.

In my view such a time restriction may be declared unconstitutional on the grounds of irrationality, arbitrariness and for several other reasons.

Imposing the time restriction may also open the floodgates to applications seeking a judicial review of any ministerial decision refusing to release prisoners on licence purely on grounds that the jail term did not meet the time restriction criterion.

Jurists opposed to the release of prisoners under licence argue that the apex court is the final authority to determine the length of the imprisonment term that a convict must serve. They say once the apex court has determined the length of a sentence, neither the rulers nor the executive can intervene to vary it.

However, in my view, this argument is flawed. It is trite law, both in Malaysia and indeed throughout the Commonwealth, that the head of state has clemency powers.

In Malaysia, these powers are distributed by the constitution among the rulers or governors of each state, with the Yang di-Pertuan Agong given powers of the federal territories. In addition to that, the power to release prisoners under licence is vested by written law in the minister in charge of prisons.

This means that the role of courts in respect of sentencing ends when the apex court confirms or varies a sentence.

For example, apart from passing a death sentence, a judge has no duty to ensure that it is duly carried out. The judge is also under no duty to ensure that a prisoner serves out his entire imprisonment term behind bars.

Instead, the law provides that control of the execution of a criminal sentence passes over to the executive.

It allows the rulers or governors to pardon the convict or commute his sentence. Likewise, the law allows the minister to delay a death sentence (e.g. in cases where a prisoner is dying or ill), release a prisoner under licence or remit his sentence on grounds of good behaviour.

As it stands, these conditions are subject to regulations, which are within the administrative domain of the minister, presently designated to be the home minister.

At the end of the day it is a question of whether the government is inclined to release prisoners subject to the imposition of terms. The only restriction on the minister is that the regulations he draws up must not be ultra vires the Prison Act 1955, or unconstitutional.

To ensure the laws stand up to scrutiny, the minister and the legal industry must work together to draw up proper by-laws and guidelines to allow those convicted for non-violent crimes the opportunity to be released under licence subject to terms which are consistent with modern legal thinking and international human rights standards, as well as for the sake of social justice.

The legal industry must also take the initiative to ensure prisoners presently serving sentences for non-violent crimes are released as soon as possible under licence. Failure to do so as per international convention as well as our Constitution may amount to condoning human right violations. - FMT

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.