KUALA LUMPUR – VIPs are no strangers to criminal trials, anywhere. Under criminal law in Malaysia, when a VIP is found guilty, a judge has two approaches when meting out a sentence.
First, the judge can hand down a harsh punishment to make the VIP an example for the public. In 1978, the eighth Selangor menteri besar, Datuk Harun Idris, was sentenced to four years' jail for corruption.
During the judgement, the Federal Court had pointed to Harun’s position and profession, saying that he should have been a better example for the people.
Or, a judge could just hand down a lighter sentence. DAP veteran Lim Kit Siang was charged in 1979 under the Official Secrets Act for receiving confidential information.
Instead of sentencing Lim to prison, then justice Tun Abdul Hamid Omar took into account Lim’s position as an MP, only issuing a fine so as to prevent Lim from being disqualified as a member of the Dewan Rakyat.
In June, former newsman Datuk A. Kadir Jasin compared how former Sabah chief minister Tan Sri Musa Aman was discharged of 46 criminal offences involving US$50.1 million (RM202 million) but a Terengganu labourer was jailed 15 months for stealing petai.
Also, during the movement control order (MCO) early this year, a single mother was given a jail term for violating SOPs (which was later lowered to a RM1,000 fine on appeal).
She had questioned why the daughter of former deputy prime minister Datuk Seri Ahmad Zahid Hamidi’s daughter was only fined RM800 for a similar offence.
More recently, a man, rumoured to drive a luxury vehicle with a “Datuk” insignia, brutally assaulted a woman in Desa Petaling, but escaped with only a RM2,000 fine.
While it may appear like the courts are practising double standards, Bar Council Criminal Law Committee chairman Muhamad Rafique Rashid Ali said that there are many factors at play.
“On the surface, it seems like there is a disparity in sentencing (between VIPs and others). However, bear in mind that the facts of each case can differ,” he told The Vibes.
He said in some instances, an accused may plead guilty, while others may choose to prove their innocence at trial, which plays a role in deciding what sentence should be meted out if found guilty.
“Sentencing is based on a judge’s discretion. Sometimes, a particular statute may state that the penalty is up to one-year imprisonment, which means the judge can choose to sentence a guilty person from between one day and 364 days.
“The decision would be made depending on a variety of factors, including the rampancy of the offence, age of the offender, and whether the accused has previous records.”
Rafique said the judicial system itself provides a form of checks and balances from within through the appeal system.
He added that judges are bound by the decisions of the courts above them and higher courts can determine if a sentence was meted out correctly.
“If reforms are required for sentencing, all the stakeholders, including the government, the Malaysian Bar, the Attorney-General’s Chambers, and the judiciary should be consulted.”
Meanwhile, former Malaysian Bar president Ragunath Kesavan said cases involving VIPs often result in public scrutiny, which, in turn, requires accountability from prosecutors handling the case.
He said the sudden dropping of charges in cases involving VIPs or their lenient sentences can be attributed to the action of prosecutors.
“In most cases, the judiciary gets blamed when in fact, it is the prosecution that decides on the nature of the charge and withdrawal of prosecution, and with plea-bargaining, parties can also agree on the extent of sentencing,” Ragunath told The Vibes.
He said each case must be examined in detail, and if there is public dissatisfaction with the sentence or prosecution, the Attorney-General’s Chambers is obliged to provide an explanation to ensure that no special favours were granted.
Kuala Lumpur Bar Gender Equality and Diversity Committee chairman Liza Khan, however, is of the view that something is going on behind the scenes.
She said the problem may not be sentencing itself, but corruption and negotiations with the Attorney-General’s Chambers to get lesser penalties.
Similarly, the lack of legal representation comes into play in sentencing as well.
“When it comes to criminal matters in court, a lot of people can’t afford to get legal representation, which means it could be harder for them to mitigate their sentence.”
She added that judges do follow proposals from the prosecution when meting out sentences, but should be vigilant when prosecutors propose lighter punishments. – The Vibes, December 29, 2020
