In January, the Chief Judge of Sabah and Sarawak Tan Sri Abang Iskandar Abang Hashim said the courts in Sabah and Sarawak implemented Artificial Intelligence (AI) through a pilot project and it would help mete out a court sentence.
This IA is currently being tested and is being used in some courts. However, some are concerned that there was “no proper consultation on the technology’s use”, and that it is “not contemplated in the country’s penal code”.
“Our Criminal Procedure Code does not provide for use of AI in the courts … I think it’s unconstitutional,” said lawyer Hamid Ismail.
Ismail felt uneasy as the AI software that was developed by the developed by state government firm Sarawak Information Systems was being used before judges, lawyers, and the public even got the chance to fully understand it and the way it worked.
He added that the AI sentence meted out on one of his clients for minor drug possession was too harsh – 12 months jail for possession of 0.01g of methamphetamine.
On the other hand, the Malaysian authorities think that using AI in Malaysia’s courts will help make sentencing more consistent. It could also help clear backlogs more quickly and in a more cost-efficient manner.
Malaysian authorities feel that the AI software can “improve the quality of judgement”, despite not being clear as to how exactly it does this.
Other critics said the AI-sentencing pilot say it risks worsening the bias against minorities and marginalized groups, not giving them a fair trial. Responding to this, Sarawak Information Systems says it has removed the ‘race’ variable from its AI algorithm.
In a report by policy think tank Khazanah Research Institute (KRI) in 2020, it is said that the measures put in place in the AI software (like the removal of the ‘race’ variable) don’t necessarily make the system perfect. In addition, the company only used a dataset of five years from 2014 to 2019 to train the algorithm, KRI says the system is “somewhat limited in comparison with the extensive databases used in global efforts”.
With this, Ismail argued that when it comes to deciding on a sentence, judges don’t just look at hard facts. They also use their own discretion, which is something an AI software might not even be capable of doing.
“In sentencing, judges don’t just look at the facts of the case – they also consider mitigating factors, and use their discretion. But AI cannot use discretion,” he said.
“Sentences also vary with changing times and changing public opinion. We need more judges and prosecutors to handle increasing caseloads; AI cannot replace human judges.”
According to Simon Chesterman, a professor of law at the National University of Singapore, the benefits that technology may have in the criminal justice system, it can only be fully accepted if it makes accurate decisions in an appropriate manner.
“Many decisions might properly be handed over to the machines. But a judge should not outsource discretion to an opaque algorithm,” Chesterman said.
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