We’ve all seen movies where “machines” take over, where artificial intelligence grows to the extent that it overwhelms mankind—and on a more realistic level, the rumours that computers will take over our jobs. While most of us may have expected AI to make its way into the technology sector or the manufacturing industry, we’re now seeing machine learning take its place at the proverbial bench.
For the first time in Malaysia, and possibly Asia, sentences have been handed out in court with the assistance of artificial intelligence (AI)-based technology—let that sink in. On Wednesday, a Kota Kinabalu magistrate court in Sabah, presided over by magistrate Jessica Ombou Kakayun, referred to recommendations from an AI system when sentencing two defendants who had pleaded guilty.
Now, before this gets taken out of context, let’s make a few things clear. Number 1: no, judges are not being replaced, nor are they expected to be replaced by AI anytime soon. Number 2: AI is only used to provide recommendations for the court, the judge or magistrate still has the final say. And finally, number 3: the system is only set to be used for sentencing—this means that AI will only come into play once the innocence of a defendant (in a criminal case) or the outcome of of a civil case has been decided.
The aim here is to provide more consistency with court-issued sentences, with the Chief Justice for Sabah and Sarawak, Tan Sri David Wong, explaining that the AI system provides recommendations based on court cases from 2014–2019.
“It just makes it easier on the Magistrate or Sessions court judge. I can assure you it will lead to consistency of sentencing.”
“In any jurisdiction in the world, the complaint is lack of consistency, why is one sentence for a year while another is a fine only. Using the machine to analyse all data will achieve consistency, it speeds up the process a little because the magistrate doesn’t have to look up previous cases while listening to submissions.”
Another restriction on the use of this AI system is that recommendations will only be made for sentencing for two offences: rape (Section 376 of the Penal Code) and drug possession (Section 12 of the Dangerous Drug Act). But the Chief Justice of Sabah and Sarawak expects the use of AI tech to be a part of more cases eventually—including civil suits, where often figures for damages and compensation can be difficult to award with consistency. Currently, damages in cases for injuries sustained in car accidents and the like are calculated based on formulaic processes, but using AI might go some way to ensuring that consistency is assured across different cases.
For now, however, Wong feels that the first case to incorporate AI within the judicial process has been a success:
“I am happy with it. The accused was given a chance to maintain his guilty plea after being told of the likely sentence. The accused could make an informed decision.”
That said, not everyone was happy with the implementation of AI into the judicial process. The defendant’s lawyer, Hamid Ismail, argued that the use of AI was a breach of the Federal Constitution of Malaysia—specifically, Articles 5(1) and 8(1), which reference an individuals’s rights to liberty and equal treatment.
However, the court still used the AI system, and sentenced the defendant to 12 months in jail—two more months than the AI system had recommended. Meanwhile, there was also another case presided over by the same magistrate on the same day, who followed AI’s recommendation of a 9-month jail sentence. The lawyer’s arguments on the constitutional legality of the AI system, for now, will be decided by the High Court, with an appeal expected to be filed.
Wong, in any case, was unfazed, explaining that any “new tool” would need to be tested in court in order to determine if it is constitutional or not:
“Unless it is tested in court, we will not know whether it is constitutional or not. It is also not proper for us to say whether it is constitutional or not, as that means giving our views while in office.
But we expected challenges like this. Anything new which may infringe the rule of law or the Constitution, we have to take the challenges as it comes.”
And it looks like the use of AI won’t be restricted to courts in Sabah, or East Malaysia. The Minister in the Prime Minister’s Department Datuk Liew Vui Keong shared that the Malaysian government is already looking into the possibility of AI initiatives and digitalising the courts.
“Through 2020, the government will continue to pursue and introduce additional AI initiatives to digitalise the courts and secure easy access to justice for all.”
While a human element is certainly required when it comes to navigating the crucial—and often confusing—legal world, the use of AI for sentencing could be useful, if implemented properly and with due diligence. That said, it’s important that these recommendations be seen as just that—recommendations that are simply another aspect of a case to be considered by a judge or magistrate.