MP SPEAKS My first term as a Parliamentarian was a shock to me when I see the government consistently enacting laws without adequate preparation. It likes to rush in getting what it wants. Even if we pointed out that there were many defects in such laws, the government would never have the audacity to back off and conceded the mistakes.

Last Thursday, the government introduced a new bill seeking to amend Sections 6 and 7 respectively of the Corrosive Substances, Explosives and Dangerous Weapons Act 1958 (“the Act”). Unfortunately not many Parliamentarians on both sides were really familiar with this Act thus not many had participated in the debates. To add salt to the injury, the ministerial response was also frustrating and left much to be desired.

The amendments basically dealt with the sentencing. They sought to enhance the sentence from two years’ maximum of imprisonment to a minimum sentence of not less than five years but not more than 10 years upon a conviction of a  crime under section 6 of the Act. Section 6 is related to a crime of unlawful possession of  any dangerous weapon in public places.

The new punishment is known in law as a minimum mandatory sentence. You may ask me what is the problem of having a minimum sentence?

To begin with let me reiterate here the basic principle in sentencing. The sentencing power is normally vested on a judge. As one who tries fact and law, a judge is given a vast authority to pass sentence on the accused person once the latter is found guilty of a charge. In dispensing the sentence the judge has to duly consider many elements, in particular both the mitigating and aggravating factors .To their credit, the judges are duly trained in exercising such a discretion.

Mitigating elements have the effect of reducing the sentence and aggravating factors aggravate the punishment. That is how the sentencing process operates.

A minimum sentence unfortunately disturbs the said sentencing process in that the hands of the judges are tied. The discretionary power of a judge is unduly removed. By having a law which has a fixed punishment, namely five years’ mandatory imprisonment upon conviction, the court has no option but to stick to the said punishment regardless of the presence of mitigating factors which serve to minimise the sentence.

Based on false assumptions

The problem of minimum sentence is that it is based on false assumptions. It assumes all the perpetrators of crime are motivated by a unity of motivations, hence the necessity of having standardisation of punishment. In the minimum sentence manual any first offender is as good as a habitual offender, thus they are put in the same category of offenders. The judge is prohibited from treating them unequally even if they plead guilty to the charge.

It is submitted that it is against the constitutional principle of equality before the law enshrined in Article 8 of the federal constitution when we treat unequal as equal.

Prior to this the government had duly recognised the principle of plea bargaining by amending the Criminal Procedure Code legalising such a principle. But the minimum sentence may severely frustrate the plea bargaining exercise.

By definition, plea bargaining is a legal compromise between two contenders namely a prosecutor and an accused person via a defence counsel, whereby the latter would plead guilty if the former is willing to prefer a lesser charge against the latter.

If plea bargaining works smoothly it would help the state in reducing the judicial dockets as pleading guilty may save a lot of taxpayers' money and the court's precious time. Any defence lawyer would definitely advise his client against pleading guilty when the latter is slapped with a crminal charge carrying a minimum sentence.

The reason is very simple - why should your client plead guilty when the punishment remains the same even when he or she is convicted after a full-fledged trial.

What is more worrying is that as far as the Act is concerned it does not differentiate between the active criminals and the passive ones. If one looks at section 8 of the Act, which remains unamended, one would notice even any person who consorts with the main player can also be charged and sentenced under this Act.

Thus if an owner of a car is found to have possession of a knife in his car, not only is the owner liable to be charged and punished, even an innocent passenger can also be charged under the same Act. If the prosecution can prove that the passenger has knowledge of the existence of the knife in the said car the judge would have no choice but to impose not less that five years’  imprisonment.

In other words the owner and the passenger are liable to be punished with the same sentence. This is the prime source of unfairness when the law treats unequal as equal.

In fact, by having a minimum sentence the sentencing power is now shifted from a judge to a prosecutor. Unlike a judge , the prosecutor is not trained to mete out the sentence. The mandatory sentence has strong potential to be abused by the prosecutorial agency as it is common knowledge the prosecutor tends to boost his or her professional career by securing an enhanced sentence for criminals.

Thus the prosecution has a strong motivation to prefer a charge which carries a mandatory sentence even if they have options to charge the accused with a lesser sentence.

Only reserved for hudud

To be fair to the government, the mandatory sentence is not really a new phenomenon. In fact in Islamic criminal justice system, a mandatory sentence is also recognised. Nevertheless, fixed punishments in Islam are only reserved for certain extremely serious crimes which are known as hudud.

But such crimes are very little indeed. Some say six crimes out of a hundred and some even say only four crimes fall under hudud. But the severity of punishment in hudud crimes is duly conditioned with the strict rules of evidence, in particular the standard of proof. In hudud-related crimes the standard of proof is extremely high that is beyond any shadow of doubt. In other words the presence of an iota of doubt would invalidate the punishment.

In fact a person who confesses to a crime of hudud may retract such a confession at any stage, even at the stage of execution. Once a confession is retracted, the execution of such a punishnent has to be abruptly halted. The maxim in hudud is that doubt invalidates the punishment.

The introduction of minimum sentence in the Act is not duly followed by the amendment in regard to standard of proof in proving crimes in the Act. The standard of proof in all crimes whether it carries a minimum sentence or not, remains the same, that is beyond reasonable doubt. Needless to say beyond reasonable doubt is much, much lesser that beyond any shadow of doubt as propounded by Islam in serious crimes.

There has been a trend lately that the government holds a false belief that minimum sentences are badly needed to combat the crimes. Prior to this the government had also amended many sections in the Prevention of Crimes Act (PCA) and introduced the minimum sentences of various crimes. The government used the increase in crime index as justification to enhance the sentences and make them as mandatory.

The problem with this attitude is that it is complacent in choosing short routes in tackling crimes. It fails to acknowledge that crime prevention needs a holistic approach. Enhancing sentences and making them as mandatory is fruitless when the standard of our police force is still below par and lacking in adequate required infrastructure.

MOHAMED HANIPA MAIDIN, the Member of Parliament for Sepang, is a lawyer by profession and a PAS central committee member.