| Human rights and the law: ‘Spare the whip, it’s cruel’ | | | |
| Contributed by Renuka T. Balasubramaniam | |
| Thursday, 27 September 2007 09:00am | |
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“I got six. It was just incredible pain. Burning – like someone sticking a hot iron on your bum. That’s the sort of feeling. Pain – just ultimate pain. The strokes come one a minute, but it seemed like a lifetime to me. I waited and waited for the first one and as soon as I let my breath out – ‘baam’. Afterwards my bum looked like a side of beef. There were three lines of raw skin with blood oozing out.” – New Zealander Aaron Cohen who received six strokes in 1982 for drug trafficking. AMONG the many laws of Malaysia, 29 Acts of Parliament – such as the Dangerous Drugs Act, Immigration Act, Moneylender’s Act and the Child Act – and a further 48 sections under the Penal Code call for the punishment of rotan or whipping. Some offences provide for the maximum number of 20 strokes. The recent YouTube posting depicting actual footage of a prisoner being given the maximum 20 strokes of the rotan by Malaysian prison authorities caused worldwide revulsion. The bloods-pattered video was deemed so horrific by the YouTube user community that it was “removed due to terms of use violations”, while a second similar video carried a condition that one would first have to declare that he/she is 18 or older by logging in or signing up. Readers are hereby challenged to watch it in its entirety, and see how they feel about whipping afterwards. International condemnation Amnesty International and the UN Human Rights Committee have condemned whipping and other forms of corporal punishment as cruel, inhumane and degrading punishment and contrary to human rights law. Law Minister Datuk Seri Mohamed Nazri Abdul Aziz even relied on this international condemnation of whipping when he explained in Parliament during the debate on the Anti-Trafficking Bill that Malaysia, having aspirations of being a good UN citizen, had purposely excluded whipping as a form of punishment from the Bill. The UN Committee Against Torture has called for the abolition of corporal punishment and the UN Special Rapporteur on Torture has stated that “corporal punishment” is inconsistent with the prohibition of torture and other cruel, inhumane and degrading treatment or punishment. Accordingly, the Malaysian Bar, at its AGM earlier this year, passed a resolution declaring that whipping is cruel, inhumane and degrading and called for the abolition of the sentence in any legislation, and particularly against offenders of the Immigration Act. The World Refugee Survey in 2005 placed Malaysia as one of the worst offenders of refugee rights, documenting cruel and inhumane treatment in our prisons and detention camps. On top of this, migrant and refugee communities, by virtue of the penalties under the Immigration Act, are the primary victims of corporal punishment. Oftentimes the punishment of caning, although discretionary, is handed down, as a deterrent. I have observed first-hand that it is not uncommon for judges to sentence immigration offenders to at least two strokes each. In deciding that whipping must be abolished, the Malaysian Bar also considered it from a larger perspective and took the view shared by many, that because it is cruel and inhumane, no one should have to bear that suffering, and therefore called for the abolishment of caning for all offences. Administering cruelty The person administering the sentence is in fact administering cruelty on another human being under the guise of carrying out orders. These orders are, in turn, derived from a policy that disregards the universally accepted spiritual principle of non-violence. As a member of the human race, I believe I am duty-bound to do what I can to subvert the continuance of these wrongs against humanity. I believe that one day, humanity can agree that the taking of life or causing grievous bodily harm intentionally and under any circumstances, especially via sentencing principles, is wrong. Deterrent? There are those who say that the fear of being caught and subject to penal consequences deters crime. But a recent study on the deterrent effect of longer prison sentences by David S. Lee of Columbia University and Justin McCrary of Michigan University showed that the threat of increased penalties does not seem to alter criminal behaviour. Their findings suggest that potential criminals do not think at all of the consequences of their actions before committing crimes, thereby negating the effect of harsher criminal sanctions. The Ouimet Report by the Canadian Committee on Penal and Correctional Reform published in 1969, had this to say: “Traditional prisons tear the individual away from his duties towards his family, his community, his education and his work and isolate him in an abnormal community where he is exposed to a code of values established by criminals. Opportunities to make decisions, which are such an important factor in social rehabilitation, are extremely rare. It is difficult to imagine a system less conducive to life in society than traditional prisons.” Add to this the humiliation of being whipped, and one cannot possibly derive a conclusion that punishments of imprisonment and whipping are for the benefit of ‘rehabilitation’ and ‘deterrence’. When the death penalty was abolished in the United Kingdom many decades ago, it became evident from studies that the number of murders did not increase. It remained more or less constant. This is frequently cited as authority against the death penalty and on the subject of how deterrence simply does not work. Dysfunctional personalities I hold the opinion that criminal tendencies – all of them – are symptoms of dysfunctional personalities. The cause of these dysfunctional personalities usually can be simplified to inadequate or non-existent parenting and the absence of love or compassion in their lives. This we can imagine is a reason the Ministry of Women, Family and Community Development is attempting to promote the idea that the family unit is core in the development of the community. I really believe that we cannot rid society of its evils, but we can substitute evil with values that are true, good and beautiful. Public opinion Often, the principles of sentencing seek to reflect public opinion. Realistically, if the education, socio-economic background and even the self-sufficiency of the public today were to be considered as a whole, the public would be represented by your average lower-middleclass man in the street with not much education, little economic influence, little political influence, little self-confidence and fear-based reactions to all events occurring around him. He has a very limited perspective of his environment, and out of this ”ignorance“’ he may seek to cling to what he knows and believes as the only way of protecting himself. Thus ”public opinion” would be based on the lowest common denominator. This is evident where “public opinion’ on whipping is based on the principles of retribution, ”teaching a lesson” and using fear tactics to ensure that society toes the line. So, instead of reflecting public opinion, members of the Bar are taking the initiative to actually lead public opinion by lobbying the fact that the public interest would be best served if the offender is induced to turn from criminal ways to more wholesome living. The Malaysian Bar has, with its resolution, avowed to lead public opinion by rejecting and denouncing the sentence of whipping as it is anachronistic and inconsistent with a compassionate society in a developed nation. Although revenge and retribution in individuals may be understandable, society as a whole should not operate on such base principles because it cannot be forced to react through legislation, to the strong feelings of victims of crime. To this end, prison rehabilitation programmes should be revamped and tailored toward psychological counselling, encouraging a convict into self-examination through which it is hoped he may gain insight into his actions. In the example of the brutal rapist, society should harbour the faintest hope that some of these offenders, upon undergoing rehabilitation, may experience a desire to make amends as a result of the compassion and counselling he has received and thus be motivated to do something good for society or his family upon his release. Conclusion Whipping has failed as a retributory and deterrent sentence, just as strict and painful discipline on children inevitably results in their becoming more rebellious, almost as if to validate the opinion of their parents that they are “naughty” kids. It is time for Malaysia to subscribe to Article 5 of the Universal Declaration of Human Rights, that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” and reject corporal punishment altogether as a form of sentencing. We all have the ability to affect the consciousness of members of our family, community, nation and planet. The voices of those who support cruelty are loud, but the silent majority can make themselves heard. Renuka T. Balasubramaniam is a member of the Human Rights Committee (HRC), Bar Council Malaysia. For information on the work of the HRC, see www.malaysianbar.org.my/hrc. Complaints of rights violations may be forwarded to rezib@malaysianbar.org. my for consideration of the committee. However, we make no assurance that all cases will be adopted for action. |
The Malaysian Bar at its AGM last March passed a resolution declaring that the corporal punishment of whipping is cruel, inhumane and degrading and called for its abolishment. Human rights lawyer Renuka T. Balasubramaniam produces compelling and cogent reasons why all Malaysians should declare whipping barbaric.
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