Merdeka! Abolish colonial legacy of judicial whipping

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It is time to abolish judicial corporal punishment (JCP) in Malaysia i.e. the barbaric whipping of prisoners with a thick rattan cane, which draws welts and blood and leaves permanent scars. As we celebrate 50 years of Independence, it is timely to remind ourselves that this form of corporal punishment is a legacy of British colonial rule.

According to the World Corporal Punishment research website:

The penal legislation in what used to be “British Malaya” — the peninsular part of present-day Malaysia, plus Singapore — has its historical roots in the criminal laws of England and India.

When the Straits Settlements, comprising the three predominantly Chinese-populated port cities of Singapore, Melaka (Malacca) and Penang (George Town), was formed as a British colony in 1826, the criminal law of England applied. Corporal punishment was imposed for such offences as begging, pornography, treason, garrotting, and robbery with violence.

Straits Settlements Penal Code Ordinance IV replaced the common law in 1871. It was based on the Indian Penal Code, which had been enacted in 1860 to unify the criminal laws of the various provinces in India.

Offences punishable by whipping in the Penal Code were robbery, aggravated forms of theft, house trespass or house breaking, assault with intent to outrage modesty…

This list of “whipping offences” is broadly similar to that of England and Wales at the time…

…at least from the First World War onwards, the whole peninsula was in political terms regarded as “British Malaya” and for many practical purposes was run as an entity, overseen by a Governor based in Singapore who reported to the Colonial Office in London.

What is clear, anyway, is that the JCP regime as it developed was entirely an outgrowth of British legal and judicial custom and practice. It did not have anything to do with “Islamic justice”. The fact that much of the territory (except for the Straits Settlements) had a majority Moslem population was coincidental.

So if this is a British colonial legacy – and a barbaric one at that – aimed at keeping the “natives” in check and ensuring civil order under the colonial administration, why are we still persisting with it? It is interesting that the “natives” were being brutally whipped for theft and robbery at a time when colonial administrators (and their corporations) were occupying our land and plundering the country’s resources.

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Has anything changed?

As we look ahead to the 50th anniversary of Independence from colonial rule, we must abolish this most cruel, inhuman and degrading form of punishment. In recent times, defenceless migrant workers have increasingly been given whipping sentences but I don’t see many of the human traffickers being similarly punished. Neither have I come across many tycoons and politicians involved in corruption and criminal breach of trust being whipped (not that I am advocating they should be).

Even the Malaysian Bar has unanimously called for the abolition of whipping in Malaysia, as I reported in this article for IPS:

Of those brought to court, those with valid documents but who have overstayed face prison terms and deportation. A caning sentence, usually two to three strokes, in addition to a stint in prison, is meted out to those without any documents, according to Latheefa, who works in Legal Aid. Women are not whipped.

Upon being brought to court, migrants often do not know what charges are brought against them, the two lawyers claim. ‘‘They are not informed of their right to legal representation, and in any event, are not provided with a reasonable opportunity to seek help. The lack of interpretation in appropriate languages renders the whole legal process a complete travesty of justice and human rights.

Faced with indefinite detention, many of them turn in guilty pleas without realising the full implications. Full article: Illegal migrant workers may escape the cane

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