KUALA LUMPUR – Will Malaysia be seeing our courts use artificial intelligence (AI) in meting out punishments on individuals in criminal cases in the very near future?
Taken aback by the Federal Court Chief Registrar Office’s recent announcement on the matter, the Malaysian Bar immediately expressed concern over the fantastic scenario, with several lawyers also coming forward to air their fears.
The registrar’s office had said in a statement on July 22 that the guideline for sentencing using AI for the internal use of the session court judges and magistrates in the peninsula would be implemented this month.
It said that the guidelines are intended only as a “quick guide and reference” for sessions court judges or magistrates when deciding on the sentencing of a case.
The usage of the AI technology sentencing guidelines involve lower courts handing out punishments for the guilty party. What troubles certain legal practitioners is that the human touch would then be lost when delivering judgment.
Additionally, the Malaysian Bar’s resistance towards the use of AI is exacerbated by the fact that it has not received the guidelines and thus, lost the opportunity to garner feedback from criminal lawyers.
However, those who welcome the move said that despite AI coming into play, sentencing must still be guided by existing legal provisions.
Criminal lawyer Daniel Annamalai said that the court must follow Section 173(b), Section 173(m)(ii), and Section 183 of the Criminal Procedure Code, which provides that any guilty person must be sentenced according to law.
This meaning of “sentenced according to law”, Daniel said, has been explained by judges in case law.
“In Jafa Bin Daud (1981), the term ‘sentenced according to law’ means that punishment must be within the ambit of the punishable section, and passed according to other judicial principles.
“Basically, if an offence states that jail term can’t exceed five years, punishment can only be within that amount. Meanwhile, the other judicial principles would refer to aggravating and mitigating factors,” Daniel told The Vibes.
Aggravating factors are usually reasons put forth by the prosecution to push for a harsher sentence while mitigating factors are presented by the defence to convince the court to award lighter sentences.
Judges would have to consider these factors when meting out sentences.
‘Judges still maintain discretion, power’
According to criminal lawyer Purshotaman Puvanendran, AI will not change the fact that consideration on these factors must still be given by judges during sentencing.
“The introduction of AI as a quick guide and reference for sessions court judges and magistrates is a welcome change as it would mean that the judges are given a quick guide in real time.
“This, in my view, is no different than the usual practice by the prosecution, which would submit to the court the judicial trend in sentencing for a particular offence as part of their aggravating factors.”
Purshotaman said that the introduction of this new technology would merely make the process instantaneous with the provision of raw data based on judicial trends from the past.
He emphasised that this does not, in any way, take discretion and power away from judges, nor would it bind the court to sentence a person in a particular way.
“In other words, the power to sentence according to the law, according to the Criminal Procedure Code, still lies with the court and not any machinery,” Purshotaman said.
He added that although it is understandable for lawyers in the peninsula to be uncomfortable with this move since the practical aspects of AI technology are unknown, it must be noted that Sabah and Sarawak have been using the system since last year.
In its statement, the Federal Court Chief Registrar’s Office said the implementation of the AI system would be done in three phases.
It is understood that the system was implemented at the Kuala Lumpur and Shah Alam magistrates’ and sessions courts from July 23 for 20 offences, including physical and sexual assault, property theft, drug possession, and traffic violations.
The second phase of the AI system will be implemented from August to December, and will cover 30 offences of various kinds of legal provisions.
The final phase, which is from January to April next year, will involve other recorded offences in the e-Justice System, it said.
The office noted that the sentencing guidelines for the use of the magistrates’ and sessions courts in Sabah and Sarawak have been developed and adopted since February last year. – The Vibes, July 31, 2021
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