‘The Malaysian judicial system may not be as objective as it is supposed to be. Judges appear to be influenced by the offender’s societal and political position and power before sentencing.’
This is how Idrus, Houqe, Bui and Van Zijl described it in their article “Punishment of Bribery and Corruption: Evidence from the Malaysian Judicial System”.
In the book, The Behavior of Law, criminologist Donald Black said the law varied; a lower ranked offender is more likely to face severe punishment in court.
Last July, Kuala Lumpur High Court judge Mohamed Zaini Mazlan halved a 10-day jail sentence on a young mother who pleaded guilty to stealing diapers and infant milk powder worth RM291.39.
She committed the offence as her husband had lost his job a few months ago.
A few years ago, Johor Port deputy chief executive officer Mohamad Hanafiah Abu Mansor was charged in the Sessions Court with two counts of corruption, involving projects worth RM2.7 million.
He pleaded guilty to an alternative charge under Section 165 of the Penal Code and was fined RM30,000, in default three months’ jail by the Sessions Court for accepting a bribe of RM25,000. He only needed to pay the fine to be free.
Punishment for corruption cases should be reviewed with a view to enhance it. This could include mandatory imprisonment. Some graft-busters even suggest whipping.
Punishment must always be a deterrent so that offenders will not repeat the act, and to warn criminals that crime does not pay.
Some surveys indicated that both the public and offenders consider prison to be the most severe or effective punishment for criminal behaviour.
The penalties for any corruption-related offence in the Malaysian Anti-Corruption Commission (MACC) Act 2009 are imprisonment for a term not exceeding 20 years, and a fine of not less than five times the sum of the gratification or RM10,000, whichever is higher.
In comparison, the preceding Anti-Corruption Act 1997 provided for imprisonment for not less than 14 days and not more than 20 years, and a fine of not less than five times the value of the gratification or RM10,000, whichever is higher.
By reinforcing this clause, anyone found guilty will face a jail sentence of not less than 14 days to a maximum of 20 years.
Most graft-busters are puzzled that the mandatory and minimum sentence was reduced from 14 days to one day.
The existing fines of between RM100,000 and RM200,000 need to be reconsidered since the offenders can earn millions of ringgit through corruption, smuggling, human trafficking, money laundering and even illegal logging.
In most cases, those who pleaded guilty got one day in jail, paid the fines and walked away a free person to enjoy the ill-gotten gain.
It is worth amending the law to provide for a more severe punishment by at least inserting Section 16 of the Anti-Corruption Act 1997 to replace the penalty in the MACC Act 2009.
To prevent “repeat offenders”, the clause should be enhanced with mandatory caning and a higher fine.
Even criminal breach of trust under Section 409 of the Penal Code carries mandatory imprisonment of between two and 20 years, together with mandatory whipping and a fine, upon conviction.
Black stated that if convicted and sentenced, a man of higher rank is more likely to be pardoned or paroled.
In this respect, the former menteri besar of Selangor, Dr Mohamad Khir Toyo, who was sentenced to 12 months, saw his imprisonment cut short to eight months. He was granted parole for good behaviour by the Home Affairs Ministry.
The punishments for corruption play a vital role in preventing and deterring future illegalities.
If potentially corrupt people know they will get off with a light sentence, they are more likely to take the chance to commit corruption.
As such, any punishment meted out by the court should commensurate with the gravity of the offence.
This points to an important weakness in the way we punish the corrupt.
Malaysians want to believe that public service is a noble calling, not an opportunity for those in power to enrich themselves.
Corruption, in fact, can be viewed as more “brutal” than violent crime as the actions of one or a few corrupt public officials or businessmen can affect the livelihoods of thousands, even millions of people.
Corruption adds cost to projects, which means less money for schools, hospitals and infrastructure for millions of people.
The courts must continue to impose severe sentences without fear or favour in corruption cases. A maximum sentence must be meted out to deter others from getting involved in corruption.
The message must be clear: that the price one has to pay is hefty if one continues to be involved in corruption.
The influential and the big fish are no longer untouchables.
The writer holds the professorial chair at Institute of Crime and Criminology, HELP University
The views expressed in this article are the author’s own and do not necessarily reflect those of the New Straits Times