PETALING JAYA: Judges should be given blanket discretion over whether to impose whipping for penal offences which prescribe the punishment, a lawyer said.
However, A Srimurugan said whipping cannot be removed altogether from the statute books as it still serves as a deterrent to would-be offenders.
“Whipping is judicially sanctioned torture, so judges should be given total discretion to decide whether to impose it, and how many strokes to administer,” he said.
Srimurugan said that at present, Penal Code offences such as rape, sodomy, incest and inciting a child to an act of gross indecency carry mandatory corporal punishment over and above a jail term.
However, he said, a first offence of theft, and offences such as causing hurt and armed robbery gave judges a discretion.
He was responding to deputy law and institutional reform minister Ramkarpal Singh, who told the Dewan Rakyat on Monday his ministry has earmarked corporal punishment for review next.
During the debate over the Abolition of Death Penalty Act, Hassan Abdul Karim (PH-Pasir Gudang) had described whipping as “sadistic, primitive and inhuman”.
Hassan, who is a lawyer, called for the punishment to be abolished.
Srimurugan said the US, European Union nations and most Commonwealth countries, including the UK, Australia and India, have abolished whipping.
“We, too, could finally move in that direction, but not now as our society has yet to mature,” he said.
He explained that corporal punishment originated from the UK, and was introduced in India by the British for those who opposed colonial rule.
“We inherited that mode of punishment as our penal laws were imported from India,” he said.
Lawyer Baljit Singh, who supports the removal of whipping as a punishment, said it could affect the mental and physical health of adult offenders, especially if administered excessively.
He said the government should also exempt whipping for drug trafficking, and that a judge should also be authorised to impose a jail term of up to 40 years instead of the death penalty.
“Why impose flogging when an offender, although spared the death penalty, is required to serve long years in jail for trafficking,” he asked.
Baljit also questioned why the government is prescribing lighter punishment for white collar crimes listed in the Penal Code.
Section 288(3) states the rotan used for whipping in serious crimes shall be more than half an inch in diameter.
However, Section 288(4) states that whipping is to be inflicted in the way of school discipline with a light rotan for those found guilty for white collar crimes.
“There is a double standard in the method of punishment,” he said.
Currently women, and men sentenced to death and those above the age of 50 are exempted from caning.
However, the punishment may still be imposed on those above 50 who are found guilty of sexual offences like rape and non-consensual sodomy.
The law also allows whipping up to a maximum of 24 strokes.
Presently, a convict can only be exempted from whipping if a prison doctor certifies him unfit at the time the punishment is to be meted out. The offender, however, will see his jail term extended.
