Judicial system cannot fully do without the human factor, say lawyers

Lim Lian Kee

KUCHING (April 21): The thought of appearing in court and being given a sentence for an offense is already a nerve-wracking experience for many people, but imagine how even more dreadful it would be to see the sentence handed down with using a faceless, soulless device that feeds on electricity.

It is reported that courts in Sarawak and Sabah are expected by this month to conclude the test of the use of artificial intelligence (AI) by providing judges with guidelines and analysis for the determination of the penalty.

Many quarters have questioned this pilot project, asking “whether a robot should indeed have a hand to decide a person’s fate anytime soon.”

A number of lawyers here, while open to the use of AI in court, also believe that the court system cannot completely eliminate the human factor, and that judges should always exercise discretion in considering mitigating circumstances when deciding on a judgment.

Lim Lian Kee, who has been a lawyer for about four decades, said it might not be relevant or appropriate for Sarawak.

“I am concerned about the lack of the human factor, which can lead to unjust sentences.
“After all, a computer is a computer – it has no human feelings or compassion,” he said. Borneo Post when asked to comment on the AI ​​app.

Lim agreed that such a tool could help settle more cases faster because it would help magistrates or judges to decide the sentence based on data or precedents stored in the system.

“But we have a plea bargain, which is just as good – if not better – because both sides have agreed on a sentence.

“The AI ​​system could not replace humans in sentencing, considering (there are) mitigating factors as well as aggravating factors,” he said.

Sabah and Sarawak Chief Justice Tan Sri Datuk Seri Panglima David Wong Dak Wah had announced the system on January 17, 2020, after a ceremony here to mark the start of Sarawak and Sabah’s legal year.

He said the request was timely as in the past there were complaints about the disparity and inconsistency of sentences handed down by magistrates or judges.

“How or how it works will be made known to the defendants and they will know in advance the likely outcome of their cases. Then it will be up to them to plead guilty or plead not guilty,” Wong had said. .

The AI ​​system is developed by the Sarawak Information Systems (Sains), owned by the state government.

Borneo Post has contacted Sains and is awaiting a response on how the system was developed and how it would work.

According to another lawyer Simon Siah, when a defendant had been found guilty or had pleaded guilty after mitigation, the magistrate or judge would then refer to the AI ​​tool.

Simon Siah

“The AI ​​tool would give the suggestion on the likelihood of a certain punishment for the particular offence. It would show the percentage of whether the previous case law was more prone to imprisonment or fine, or how long such imprisonment or the amount of the fine should be.

“Ultimately, however, the magistrate or judge would still have the discretion not to follow the AI ​​outcome,” Siah said.

Still, he worried that the AI ​​might not be accurate because its database might be outdated, or it might not contain the necessary case information to arrive at a sentence.

“I think AI’s recommendation is, in fact, similar to how lawyers would refer to case law to form the sentencing trend.

“Nevertheless, the database needs to be constantly updated for the recommendation of AI to be more effective,” he said, believing that AI will not completely replace the magistrate or the judge to the extent where it would only serve as a guide for them to make decisions.

“In fact, if the database is up to date and the case law is listed in AI’s recommendation, I personally think that’s a good way to go for there to be more uniformity in sentencing. .

“I wouldn’t agree with implementing AI completely removing the discretion of judges, because as perfect as the system is, you can’t put feelings into a machine,” Siah pointed out.

An April 12 Reuters report on the testing of the AI ​​sentencing tool in Sarawak and Sabah quoted a Sabah lawyer, Hamid Ismail, as saying there had been no proper consultation on the use of technology and that it was not contemplated in the country’s penal code.

“Our Code of Criminal Procedure does not provide for the use of AI in the courts. I think it’s unconstitutional,” Hamid said in the report.

However, Hani Iryani Bonni said Borneo Post that the attorneys had been assured that the sentence generated by AI would only function as a recommendation or guideline.

Hani Iryani Bonni

“The AI ​​sentencing tool is just a recommendation on the appropriate sentence to give and how they calculate the sentence in case of imprisonment, whipping or fine.

“Judges or magistrates are not bound to follow the recommendations, but the worrying part is actually whether the judges would follow the AI ​​sentencing fully,” she said, describing it would certainly be an injustice because lack of human compassion and justification.

“I only support the AI ​​conviction because lawyers always have the ability to mitigate and speak for their clients in court,” Hani Iryani said.

At the opening of the Sarawak and Sabah legal year 2020, Chief Justice of Malaysia Tan Sri Tengku Maimun Tuan Mat, when asked to comment on the AI ​​tool, said that the Courts needed to embrace technological advancements intended to help improve efficiency.

“Such technological advances are here to stay and we need to evolve with them. If this system (the AI) comes to us, I don’t see why we shouldn’t get into it.

“But as we progress, we also can’t rely on it 100% and so there have to be human elements as well,” she said.