Give judges unlimited discretion in flogging convicts, lawyer says

However, it is not yet time to remove corporal punishment from the law books, says A Srimurugan.

Attorney A Srimugan said a number of countries, including the US and UK, have abolished flogging. (Facebook picture)

PETALING JAYA: Judges should be given full discretion over whether to order flogging for offenses that prescribe punishment, a lawyer said.

However, one Srimugan said flogging could not be completely erased from the law books as it still served as a deterrent to potential offenders.

“Flogging is court-sanctioned torture, so judges should be given full discretion to decide whether to impose it and how many blows to administer,” he said.

Srimurugan said that currently penal code offenses such as rape, bestiality, incest and inciting a child to commit an act of gross indecency carry mandatory corporal punishment in excess of jail time.

However, he said a first theft and offenses such as causing injury and armed robbery gave judges some discretion.

He was responding to Deputy Minister for Justice and Institutional Reform, Ramkarpal Singh, who told Dewan Rakyat on Monday that his ministry had put corporal punishment next for review.

During the debate on the death penalty law, Hassan Abdul Karim (PH-Pasir Gudang) called the flogging “sadistic, primitive and inhuman”.

Hassan, a lawyer, called for the sentence to be abolished.

Srimurugan said the US, European Union countries and most Commonwealth countries, including Britain, Australia and India, had abolished flogging.

“We too could finally move in this direction, but not now, as our society has yet to mature,” he said.

He explained that corporal punishment originated in the United Kingdom and was introduced in India by the British for those who resisted colonial rule.

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“We inherited this type of punishment as our penal laws were imported from India,” he said.

Attorney Baljit Singh, who supports the abolition of flogging as a punishment, said it could affect the mental and physical health of adult offenders, especially if used excessively.

He said the government should also exempt flogging for drug trafficking and a judge should also have the power to impose up to 40 years in prison instead of the death penalty.

“Why impose flogging when a perpetrator, despite being spared the death penalty, faces long years in prison for human trafficking,” he asked.

Baljit also questioned why the government is prescribing lighter sentences for economic crimes listed in the Criminal Code.

Section 288(3) states that the rattan used for flogging in serious crimes must be more than half an inch in diameter.

Section 288(4), however, states that flogging is to be imposed as part of school discipline with a light rotan for those found guilty of economic crimes.

“There’s a double standard in punishment,” he said.

Currently, men and women sentenced to death and those over the age of 50 are exempt from caning.

However, the penalty can still be imposed on people over 50 who are convicted of sex offenses such as rape and non-consensual bestiality.

The law also allows flogging up to a maximum of 24 strokes.

At present, a convict can only be released from flogging if a prison doctor certifies his unfitness at the time the sentence is carried out. However, the prison sentence of the perpetrator is extended.

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