Incorporating mediation in the criminal procedure code of Malaysia

Abstract

Settlement out of court in criminal cases in Malaysia is allowed through the process of plea bargaining which is accepted officially after the amendment of the Criminal Procedure Code 2012 (Act 539) by the Criminal Procedure Code (Amendment) Act 2012. In the process of plea bargaining, the prosecution and the accused negotiate on the reduction of charge or sentence against the accused. In the case that attempts at plea bargaining fail, the Court at the case management stage will fix a date for trial. Nevertheless, the United Kingdom, Singapore and the State of Idaho have taken a proactive step which allows a judge to act as a mediator to facilitate the process of plea bargaining between the prosecutor and the accused to reach an agreement out of court known as criminal mediation. Islamic law also encourages parties to resolve criminal cases through mediation (ṣulḥ) if the criminal act has affected the victim personally. The present study analysed the law and practice concerning plea bargaining and case management in Malaysia. This study has identified the weaknesses and lacunas in the provisions governing plea bargaining and case management under the Criminal Procedure Code 2012 of Malaysia. These weaknesses and lacunas can be overcome through mediation if the attempts of plea bargaining fail as practised in the United Kingdom, Singapore and the State of Idaho. Incorporation of mediation in the Criminal Procedure Code 2012 (Act 539) is necessary to benefit the parties and judge, particularly to expedite the disposal of criminal cases, and reduce the number of pending and appeal cases.