Parliament is meting out sentences in place of judges, when it binds their hands with the letter of the law, said a senior criminal lawyer in arguing for reform.

V Sithambaram, who has defended several high-profile murder cases, said judges are fenced in by a limited number of sentencing options.

"Instead of reform, we've seen increasingly harsher sentences being passed by Parliament," he said, noting the prolonged absence of reform in this area of the law.

"As it stands now, a judge's hands are tied (because) Parliament has already passed the sentence for the judge."

He was one of some 70 local and foreign speakers who presented papers on a wide range of topics at the recently-concluded 13th National Law Conference organised by the Bar Council in Kuala Lumpur.

The current sentencing structure, he said, was purely punitive when the aim of the criminal justice system should be to punish, deter and rehabilitate offenders.

"Rehabilitation has taken a back seat. I honestly think we're wrong to believe that we've reformed them (offenders)," he said, while conceding the need to consider the nature of the crime as well.

The essence of sentencing was aptly captured 24 years ago by Justice Wan Yahya Pawan Teh who, according to Sithambaram, said a judge should have at his disposal various innovative ways of sentencing.

Sithambaram said the continuous upward pressure to impose harsher sentences in response to sensational crimes is worrying because it pushes judges to impose the maximum allowed.

"The government should surrender the role of responding to crimes to the public," he said, referring to knee-jerk reactions following a recent spate of high-profile rapes and murders.

Outdated sentences

Contrary to public perception, Sithambaram said, heavy penalties do not deter re-offending. Police records, for instance, show a steady rise in the number of violent crimes and crimes involving property.

He also outlined the sentencing structures in the US, Britain and South Africa with particular emphasis on parole and community service.

While Malaysia imposes fines, whipping/caning and death as penalties, the prisons lack the ability to offer rehabilitation services. This has resulted in hardened criminals returning to society.

Sithambaram described the mandatory death penalty, corporal punishment and life imprisonment as "outdated sentences" which should be reserved for those convicted of the most violent and heinous of crimes.

"Instead of warehousing prisoners, I believe we should do away with natural life sentences in order to prevent re-offending," he said.

The capacity of Malaysian prisons has already been exceeded by some 10,000 inmates.

"Furthermore, due to psychological implications such sentences tend to turn an offender into an animal. What happens during and after time is served is never considered."

One US model, he added, provides for splitting the sentence between remission, prison time and community service. The offender is supervised by a probation officer, thus giving the person a better chance of assimilating into society.

Basis of reform

Cambridge University senior lecturer and part-time judge Nicola M Padfield said a re-assessment of justifications for punishment must always accompany sentencing reform.

In the UK, several developments have arisen from enforcement of the Criminal Justice Act 2003 including the creation of a new Sentencing Guidelines Council.

She said sentencing courts are now required to give regard to the council's guidelines. The first set of three was released a year ago.

The guidelines include provisions for sentencing dangerous offenders by imposing a life sentence or imprisonment for public protection based on the person's potential threat to society.

"These 'dangerousness provisions' are causing widespread concern, partly that there will be a significant increase in the prison population, but also that these are too inclusive and will prove to be profoundly unfair."

She said there were also "hugely controversial" provisions for sentencing murderers where a court, as opposed to the home secretary previously, will determine the minimum prison term.

"It is unthinkable and almost impossible to re-introduce death and corporal punishment in Europe due to the adoption of human rights principles," she said.

Commenting on the role of public opinion, Padfield, who is involved with reform and the training of judges, said research in the UK showed that the public are not as punitive-minded as politicians and judges think.

"The public do not have a sophisticated knowledge of criminal justice and the media give an imbalanced picture," she said.

"As far as I'm concerned, judges and lawyers, like politicians, should lead public opinion, not bow to mass populism."

'Be more humane'

Retired Malaysian police officer Zaman Khan, who was seconded as Prisons Department chief in 1994 until his retirement, believes that sentencers should be humane.

"It is most important to remember that punishing an offender actually inflicts much greater hardship on the family."

Echoing Sithambaram's views on prisons hardening offenders over time, Zaman said his experiences in the police and later the prisons showed that it was due to the absence of rehabilitation.

"Throughout my tenure, most prisoners I've met want to repent. That is why we need to be humane about sentencing.

He said a mini-culture created within the prison system also promotes extortion and corruption, sometimes at the insistence of the prisoner or family members.

"We need to look at factors within the prison walls such as providing for probation officers, medical personnel and counsellors," he said, blaming society for demanding harsher penalties.

During the open discussion that followed, lawyer Mariette Peters asked the panel why castration had been excluded in their presentations and whether it was considered a taboo subject.

"I've raised this matter in previous forums and I'm always asked to politely shut up without it even being given a thought or a show of willingness for discussion. Why is that?"

Sithambaram said a castrated rapist may turn out to be more dangerous to society.

"(You) may as well kill or poison (the offender) instead of castrating him because he may vent his anger on society by committing worse crimes, especially against women."

In addition, there is the possibility of someone being wrongfully charged which could lead to bigger problems, including miscarriage of justice.