KUALA LUMPUR: Proportionality in sentencing is slowly gaining recognition in Malaysia’s current constitutional position.
The emerging position recognises proportionality as a constitutional principle that applies strongly in public law and liberty cases.
In a recent speech, prominent senior lawyer Datuk Seri V. Sithambaram (image) said the trend favours greater judicial discretion, individualised sentencing and proportionality-based punishment.
Sithambaram said despite recognising proportionality, Malaysian courts have traditionally maintained that sentencing policy primarily comes from Parliament, and courts should not substitute their views for legislative policy. Severe punishment alone is also insufficient to invalidate legislation.
He said while the Federal Constitution contains no express reference to proportionality, the Federal Court has interpreted Articles 5(1) – no person shall be deprived of his life or personal liberty save in accordance with law – and 8(1) – equality before the law – as incorporating the principle into Malaysian constitutional law.
This constitutional development has significant implications for criminal sentencing, with several landmark cases, namely Alma Nudo Atenza v Public Prosecutor and Amir Hariri Abd Hadi v Public Prosecutor, confirming proportionality as a constitutional doctrine of general application.
“Taken together, these decisions establish that proportionality is not merely a sentencing guideline but a constitutional limitation on the exercise of judicial and legislative power,” said Sithambaram during the recent 17th Asian Criminological Society Conference in Penang.
As such, he said proportionality is widely regarded as the cornerstone of modern sentencing.
“It requires punishment to be commensurate with both the seriousness of the offence and the offender’s culpability.”
However, its practical application has significant strengths and weaknesses, he added, stressing that proportionality promotes justice and fairness.
“Its greatest strength is that it ensures that the punishment fits the crime. More serious offences receive more severe punishment while less serious offences are punished less harshly. This reinforces public confidence in the criminal justice system.”
According to Sithambaram, proportionality in sentencing is an essential safeguard against excessive punishment, but without structured criteria, it can itself produce arbitrariness, inconsistency and unequal sentencing.
“Proportionality acts as a constitutional safeguard against arbitrary or unduly harsh sentences. In Malaysia, this aligns with the values underlying Article 5(1) and Article 8(1) of the Federal Constitution,” he said.
He, however, said excessive punishment imposed solely for deterrence would offend proportionality and reiterated that it would not encourage criminals to be bolder with the mere thought that there is a form of protectionism.
“Proportionality does not require leniency. It requires that deterrence be achieved without abandoning the relationship between the punishment and the offender’s culpability and the seriousness of the offence.”
Asked whether proportionality in sentencing could be abused, Sithambaram said it did not mean leniency in serious offences.
“It means that the severity of punishment must correspond to the gravity of the offence and the offender’s culpability. It safeguards against both unduly harsh and unduly lenient sentences,” he said.
He highlighted that proportionality also encourages individualised sentencing, enhances consistency and upholds the rule of law.
In his speech, Sithambaram said Malaysia’s 2023 sentencing reforms, including the abolition of mandatory death penalties and natural life imprisonment, strengthened the role of proportionality by restoring judicial discretion.
“However, Malaysia still lacks comprehensive sentencing guidelines comparable to those in some other common law jurisdictions, which can lead to sentencing disparities,” he explained.
Proportionality remains the fundamental principle of sentencing because it promotes fairness, respects constitutional rights and requires punishment to reflect the seriousness of the offence and the offender’s culpability.
Its principal weakness lies not in the principle itself, but in its practical application. Without clear appellate guidance or sentencing guidelines, different judges may reach different views of what is ‘proportionate’.
Responding to a question on the weight the court gives to public interest and deterrence versus the personal mitigating factors of the offender, Sithambaram said: “Gravity provides the baseline. Aggravation and mitigation adjust individual culpability. Public interest supplies legitimate sentencing objectives. Proportionality prevents any of those objectives from producing an excessive sentence.”
Sithambaram added that proportionality establishes the boundaries for sentencing, whilst other sentencing objectives operate within those boundaries.
Discussing sentencing and how courts determine the proportionate number of strokes of the rotan alongside a custodial sentence without crossing into cruel or degrading punishment, Sithambaram said: “If imprisonment and whipping are both imposed, the court should consider the combined punishment, rather than treating each component in isolation.”
The Federal Court had in the past held the position that whipping did not constitute cruel, oppressive or degrading punishment under the Constitution as Parliament had prescribed the punishment.
He said the strongest academic supporters of this concept are modern “just deserts” theorists, while the principal opposition comes from utilitarian theories of punishment, such as ‘what punishment do the offender deserve and produce the greatest legitimate social benefit’.
Touching on the challenges for Malaysian sentencing law, he said it is not whether proportionality should be the governing principle, but how it can be applied consistently through principled judicial discretion, coherent appellate guidance and constitutionally informed sentencing standards.
Sithambaram highlighted one example somewhat similar to our system – India.
“India is comparable because, like Malaysia, its constitution does not have a “proportionality” article equivalent to Section 36 of the South African Constitution.”
“Yet the Indian Supreme Court has developed proportionality through the constitutional guarantees of fundamental rights, particularly Articles 14, 19 and 21,” he highlighted.
“Comparative Asian jurisprudence demonstrates an emerging regional consensus that proportionality is fundamental to a just system of criminal sentencing.”
“Although jurisdictions differ in constitutional structure, legislative policy and sentencing methodology, they share a common commitment to the principle that punishment must correspond to the gravity of the offence and culpability of the offender,” he said.
