Salim Bashir says whipping is inhumane and ought to be restricted to serious crime, while fellow lawyer Jayananda Rao says there are instances which give rise to a sentencing imbalance. (Pexels pic)
PETALING JAYA: A lawyer has urged Parliament to amend the Criminal Procedure Code (CPC) to give judges a discretion as to whether to impose concurrent or consecutive whipping sentences on persons convicted of multiple offences.
Salim Bashir said this is the only avenue available after the Federal Court ruled by a 2-1 majority last week that caning must be meted out on a consecutive basis even if prison terms are ordered to run concurrently.
Salim Bashir.
“It is unlikely that another bench will depart from the decision so soon after the majority ruling delivered last week. In any case, the legislature is the proper forum to amend the CPC,” the former Bar president told FMT.
In the majority ruling, Justice Abu Bakar Jais said there are no statutory provisions in Malaysia which suggest that whipping can be carried out either concurrently or consecutively.
He said several cases, including those decided in Singapore, suggest that whipping sentences have to be executed consecutively.
Justice Rhodzariah Bujang concurred with Abu Bakar.
Justice Nallini Pathmanathan, who dissented, said the court should take into account elements of fairness and proportionality as prescribed under Articles 5 and 8 of the Federal Constitution.
She said that in the absence of any express statutory provision governing the matter, the courts retain a discretion as to whether to impose whipping concurrently or consecutively.
This issue arose after a former lorry attendant, S Santhanasamy, was convicted of two counts of drug possession. He was sentenced to 11 years’ imprisonment and 10 strokes of the rotan on the first charge, and 10 years and 10 strokes on the second.
His jail term was allowed to run concurrently, meaning he would only spend 11 years behind bars.
However, the Federal Court ruling means that he will receive 20 strokes of the rotan as there is no express provision allowing for the two whipping sentences to run concurrently.
Other reasons for review
Salim said the CPC – which prescribes that only male offenders below the age of 50 may be whipped, and limits the number of strokes adults can receive to 24 and young offenders to 10 – is in need of a review for other reasons.
“(Whipping) is both inhumane and, in certain circumstances, may not be commensurate with the nature of the offence,” he said.
He called for the punishment to be limited only to serious cases such as murder, rape, kidnapping and armed robbery involving elements of violence.
Jayananda Rao.
Lawyer S Jayananda Rao said men below the age of 50 convicted for trafficking under Section 39B(1) of the Dangerous Drugs Act 1952 (DDA) are liable to a fixed 30-year jail term and a minimum of 12 strokes of the rotan.
On the other hand, he said, male offenders convicted of possession under Section 39A(2) of the DDA may be liable to a prison term ranging from between five and 30 years, but are nonetheless subjected to a minimum 10 strokes of the cane.
That, he said, creates a sentencing imbalance.
Jayananda also called for the law to be amended to allow courts the discretion to reduce the number of strokes given to convicts consigned to lengthy jailed terms.
He said judges should also be allowed to consider other unique aspects on a case-by-case basis, such as the nature of the crime, the manner in which it was carried out, and its harm to its victim and to society.
“The acts may not be violent but the counter argument is that they destroy family and society,” he said.
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