aid for the hopeless

Is there shines for the cent less appellants in Malaysian legal fraternity?

©New Straits Times (Used by permission)
by V. Anbalagan

PUTRAJAYA: The Bar Council wants lawyers to be assigned to those who cannot afford counsel in appellate courts, especially in cases which carry heavy penalties.

Bar Council criminal practice committee chairman Hisyam Teh Poh Teik said at present, lawyers were only assigned to accused who faced a charge that carried the death penalty at the trial stage.

When an appeal is made after conviction, whether by the accused or prosecution, the appellant does not get a state-funded counsel to plead for him.

Hisham said the court must assign a lawyer irrespective of whether the convicted person or the public prosecutor was appealing.

He said his committee would discuss this matter at its monthly meeting on Aug 8 and make the necessary recommendations to the authorities.

Over the past two weeks, the Court of Appeal has either dismissed appeals or enhanced sentences of appellants who were unrepresented.

Retired Court of Appeal judge Datuk K.C. Vohrah said the right to counsel should be seen from the human rights perspective.

"A lay person who is unrepresented will not know the law and principle of sentencing before a panel of judges," said the former human rights commissioner.

Lawyer Gurbachan Singh said convicted persons who appealed usually made a one-line submission that they wanted sentence to be reduced.

He suggested that courts request any lawyer present to act as amicus curiae (friend of the court) to help mitigate for the appellant.

Kuala Lumpur Bar criminal practice committee chairman Datuk N. Sivananthan said the current adversarial system appeared to look like justice when it was only accessible to those with financial means.

He called for those charged in the Sessions Court with firearms possession, which carried natural life imprisonment, be accorded counsel as technical and scientific evidence needed to be adduced.

"This offence carries a strict mandatory sentence. It is either the person gets acquitted or convicted and there is no provision for a reduction in the charge."

He said this was the only offence in which the convicted person, unless he obtained a royal pardon, would die in prison.

This punishment, he said, was far worse than those convicted of drug possession and culpable homicide which carried a jail sentence of up to 30 years.

"After the one-third remission, those convicted can leave prison after serving 20 years."

Lawyer M. Kulasegaran, however, wants the high-powered implementation committee chaired by de facto Law Minister Datuk Zaid Ibrahim to ensure that all persons charged be assigned counsel when the plea bargaining system comes into force soon.

(Plea bargains are negotiated agreements between the defence and prosecution on condition that an accused agrees to plead guilty to a specified charge in exchange for an oral promise of a lower sentence.)