07 January 2011

Pleading your case, Bargaining your way through

What is Plea Bargaining? It is a process of negotiation in criminal litigation between the Prosecutor & the Accused. It is common to see Plea Bargaining in TV series about lawyers and police. So, we may have our own perception on how plea bargaining works. But the reality in Malaysia, is a little different than what you see on TV.

Usually Plea Bargaining is used to avoid a Trial, and at the stage of plea bargaining; both the Prosecution and Defence, can gauge their respective strengths. If one of the parties feel they may not have a strong case, plea bargaining may be an option. For the Prosecution, so long as a conviction is recorded, they may have done their part; and conversely for the Defence, if they can lower the sentence of the Accused (or in some cases, secure a release) that would be a moral victory to the Accused.

In Malaysia, as a matter of practise, lawyers defending the Accused, would usually write to the Prosecution, what is normally called a “Letter of Representation”. Very much like Plea Bargaining, the Letter of Representation would present the views and proposals of the Accused to the Prosecution. Usually the said Letter would urge the Prosecution to either release the Accused; or charge the Accused for a lower offence.

The proposed Plea Bargaining procedure by the Malaysian Judiciary, recently reported in the media, suggests that the judiciary wish to have in place a specific procedure to allow both parties to negotiate an acceptable conclusion before presenting the same to the Judge. From the Judge’s point of view, this would mean quicker end to the case; which would also mean lesser costs and more judicial time to hear other cases.

There is much benefit to have this system in place, but caution must be placed in its implementation. As the President of the Bar, Ragunath Kesavan, was quoted to say in another daily, Plea Bargaining is not a new concept in Malaysia. In fact, what the judiciary proposed, seems to formalize what is already in place, in practice.

But the implementation must be carefully studied, so as to avoid the possibility of abuse and corrupt practise. The current practise of sending in Letter of Representation can be a slow and sometime cumbersome process. But it has its merits, in that it minimize the possibility of corruption. The Letter of Representation from the Accused is usually studied by the State Prosecution Headquarters, and after some discussion between the prosecution and the Police or other relevant agencies, the Prosecution will decide which way they wish to take.

Plea Bargaining, done in Court itself, would see both parties having direct communication and discussion on the matter. Some kind of discretion would have to be given to the Prosecution Officer at that Court to decide which way the case may go. This would be much faster than the current system, but there must be check and balance so as to avoid the parties involved, abusing the plea bargaining process.

We have to take into account another silent party in the entire Plea Bargaining, and that would be the victim of the crime (or in some cases, the family of the victim).

The victims, would normally wish to have their day in court, and would usually demand the maximum sentence on the Accused. If Plea Bargaining is too loosely applied, leading to (for example) lower sentences in many cases, then we would have a fair amount of unsatisfied victims, who may feel that justice was not done.

In most instances, plea bargaining would lead to a lower sentence for the Accused. That being the usual conclusion of Plea Bargaining, the victims of the crime may feel that they were denied an opportunity for their day in court & also, as mentioned, the sentence meted out was an injustice to them.

However, any proposed move to improve the delivery of legal services to the people is much appreciated. Hopefully, Plea Bargaining can go some way to help clear the backlog in Criminal Courts.


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