Kasthuri Patto urges for the abolishment of whipping

The issue of caning has surfaced again following the recent sentencing of seven years of jail and two strokes of the cane for Muar Member of Parliament Syed Saddiq Syed Abdul Rahman, who was found guilty of abetting criminal breach of trust (CBT), misappropriation of property and two counts of money laundering.
Kasthuri Patto

KUALA LUMPUR, Nov 16: DAP Deputy Secretary for International Affairs and DAP Vice Chairman for the Women’s wing Kasthuri Patto has urged the government to look into setting guidelines for the setting of sentences.

“Don’t stop at the much anticipated re-sentencing process. It is time to set sentencing guidelines, form a sentencing council and abolish whipping once and for all,” which would be in line with a progressive MADANI government, she said in a statement issued today.

The following is her full statement:

The re-sentencing decision made by the 3 man panel led by Tun Tengku Maimun binti Tuan Mat who presided in the Federal Court 2 days ago to 7 death penalty inmates was received well, especially by the families of the inmates but more importantly as a historic and landmark decision on how Malaysia sees herself as a nation that has abolished a decades old colonial law – the death penalty and to emerge as a defender of human rights.

Malaysia, in the past, had 11 offences that carry the mandatory death penalty and 22 other offences that carry discretionary use of this capital punishment, bringing the total of death penalty offences to 33. After the MADANI Government abolished the mandatory death penalty in April 2023, it came into effect in September 2023 and then began the applications for re-sentencing by death row inmates in Malaysia which is more than 1000 to date.

Re-sentencing of death penalty offences is a valiant and progressive move by the MADANI Government, particularly by Minister of Law and Institutional Reform Dato’ Sri Azalina Othman and her Deputy Ramkarpal Singh, the Legal Bureau and even the Prisons Department who were very supportive, who had worked tirelessly to see the fruits of their labour, a reality.

However, as this is still in its infancy and the litmus test was first carried out on Tuesday, the best way forward is to produce re-sentencing guidelines for the benefit of judges and also the Deputy Public Prosecutor so it can be applied with transparency, accountability and integrity to uphold the rule of law and the sanctity of the Malaysian judicial system.

With a re-sentencing guideline in place, the next is for the Government to focus on setting up a re-sentencing council for greater check and balance and for the council to act independently without fear or favour in strengthening the criminal justice system.

For example, in the United Kingdom, it took experts, activists, lawmakers, lawyers and judges to come up with re-sentencing guidelines and 10 years to set up a council. Malaysia need not wait for that long to come up with progressive guidelines that will echo the vision, hearts and minds of esteemed and learned judges. The UK model can be used as a guide to forming Malaysia’s sentencing council that will cater to the wants and needs of justice, the rule of law and the nation at large. The council will further serve to maintain the independence of the judiciary while persevering consistency.

Re-sentencing guidelines and the setting up of the council is in no way undermining the independence of the judiciary but instead to amalgamate and cement integrity and professionalism in the highest order for judges and at the same time to greatly improve the perception and the public opinion of our judiciary system.

In the same breath, I plead with the MADANI Government to seriously look into abolishing whipping as a form of punishment for inmates. Whipping, like the death penalty is a colonial law and was meant to demean and dehumanise one and was used by the colonisers on Malayans back in the day when they did not do as needed, didn’t follow instruction and as a form of a faux punishment.

When Pakatan Harapan was in Government, there was a move to sign and ratify the UNCAT (United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) but it did not take off as many had hoped for.

In 2022, when the former Law Minister Dato’ Sri Wan Junaidi called for meetings on the abolition of the mandatory death penalty, the subject of doing away with whipping arose but was shot down due to “insufficient time to study the repercussions of removing the whipping provision”.

Whipping has always been seen as power and control of the mighty over the meek, the helpless and the vulnerable more than as a deterrent. Slave drivers used whipping on slaves who were given worse treatment than animals to show them who is the master and who they are, domestic violence abusers use physical punishment to assert pain and impose control over their partners, violent individuals use violence to reign in aggressive animals, rogue police officers used unwarranted force and even physical abuses that have led to custodial deaths in the name of extracting information from the accused and sadists use it as a means to subjugate and dominate one like a slave.

In Malaysia where whipping, with a cane, is still used on inmates for certain offences, the effectiveness comes into question as the same with the death penalty if it is indeed a deterrent or not. There is no doubt that many may argue that the level and extent of pain and the tearing and stripping away of flesh from the human skin IS a deterrent but as a progressive, developed and civilised nation, should we be continuing this barbaric and archaic form of punishment as retribution?

Can one guarantee there is no miscarriage of justice in the criminal justice system? Surely, no. With that said, how can we allow this form of a demoralising punishment be accorded to a fellow human being?

I urge the Government to revisit its once-upon-a-time initiative to sign and ratify the UNCAT, using it as a benchmark and keeping abreast with international standards on moving away from torture and cruel punishments, punitive and retributive and moving towards rehabilitative and restorative justice.

Second chances are not merely for the powerful and the privileged who are laden with money and riches but for every single Malaysian, including the poor, the destitute, the vulnerable, the powerless and the voiceless under the Malaysian sun.

This is our chance to do the right thing, to be beacons of human rights, rule of law and justice.

— WE