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Legally sanctioned hitting of children must stop

As published in Malay Mail today



By Dr Amar-Singh HSS

A paediatrician, who was recently  compelled to witness the caning of an 18-year-old in court, relives the trauma:

LAST week I experienced one of the darkest days of my life as a paediatrician. I have been through tough times but none as despairing as my last experience.

I have helped parents whose children died. I have spent sleepless nights worrying over ill children.
I have agonised with teenagers on struggles with parents and peers. I have worked with abused children.

But I have never before been party to state approved, legal physical punishment of children.
I accepted an unusual written legal request through my hospital director from a court magistrate. We were asked to send a doctor to ‘witness’ the whipping of a child in court.

We were requested by the court to certify that this child was in a fit state of health to undergo the caning.

In writing about it, it not my intention to question the decision of the magistrate involved, but to appeal that we amend the law.

When I first received this request, I must say I was taken aback. I thought I knew the laws about children in our country quite well. So I thought this was some archaic ruling of the penal code.

I consulted senior officers and my pediatric colleagues in the Ministry of Health, all of whom were equally horrified.

I faxed a response to the court to say that we were not supportive of this and that it was against the best interests of children; against the spirit of the Child Act.

I also pointed out as doctors we should not be participating in punishment.

The court responded to say that it was legally allowed under the Child Act (Section 91) to whip a male child up to 10 times.

In addition it was also legally required that “before executing the whipping, the child shall be examined by a medical officer to certify the child is in a fit state of health to undergo the whipping” (Section 92).

I then checked with lawyers and a court judge who advised me that we would have to go.
I decided to attend personally so that none of my younger doctors would have to experience this, as well as to see if I could prevent it from happening.

The child in question had reached the age of 18. He was caught at 16 for a break-in.

In my assessment of him, he is not a hardened criminal but had fallen with bad friends. It looked possible to help him back on the right path.

He was placed under a bond by the court which he unfortunately broke. The family was then offered a placement in Henry Gurney School or to be whipped with a light cane. So as not to lose him from home they chose the whipping.

I then asked to speak to the magistrate who was approachable and reasonable. I made an appeal in chambers to offer ‘diversion’ as an alternative i.e. we are prepared to work with this young man long term to help rehabilitate him.

However since the sentencing had been handed down the magistrate could not alter the decision and the only option was to appeal to the high court. This was difficult for the parents to do and the mother decided not to.

I then had to proceed with my unpleasant task of examining the child and declare him fit for whipping.

The young man was calmer than I was. The whipping took place in court with four officers from the Prisons Department executing the punishment. The court doors were locked and the others inside were the magistrate, court intrepreter, one more court staff and a police officer.

They did this with military precision. If anyone says that this is a ‘light cane’ they need to experience the punishment.

Although they do not raise their arms above the shoulder the harshness of the whipping is severe. When the first stroke rang out I cringed as I saw how badly hurt he was.

After three strokes the young man almost fell down due to severity of the pain. He managed to hold on to receive all six strokes.

If anyone believes this form of punishment teaches a lesson, they need to re-examine their opinion. All I saw was a teenager hardened by the event.

I subsequently learnt this activity is being carried out on teenagers almost weekly in the Klang Valley.

I believe the magistrate had been poorly advised by those present in court, Welfare Department and the family’s lawyer, as to other options available.

Section 91 of the Child Act offers other choices. Probation is one such choice which could have been made in the form of diversion (rehabilitation through counselling).

I have arranged with the mother for him to meet me for long term support — counselling, getting a job and training.

As a society we must come to the place where we can learn that hitting someone, child or teenager, is not a useful form of instruction.

We must lobby to change these provisions in the Child Act; it is currently up for revision. Legally sanction hitting of children must stop.

Secondly no doctor should be party to or be required to support any physical punishment of children, even if they are criminals.

Datuk Dr Amar Singh HSS is senior consultant pediatrician (community), head paediatric department, Ipoh Hospital and Head Clinical Research Centre Perak.

***

Lawyers: Caning in court matter of interpretation

By Ida Nadirah
ida@mmail.com.my

PETALING JAYA — Legal practitioners are divided over caning of young offenders in public saying it was a matter of interpretation of the law.

While some lawyers said it was provided under the law, there were also senior counsel who said public whipping was illegal.

Universiti Malaya law professor Gurdial Singh Nijar said such punishments have been meted mainly to youths but said it is very uncommon.

He said under the European Convention on Human Rights, the act of caning in public is deemed as an inhumane and degrading treatment but it is made legal in Malaysia.

“There is no prohibition of caning in public. To change this, we should ask for amendment to the Criminal Procedure Code (CPC) referring to amendments to Section 293 to the CPC which provides for the type of punishment which should be meted for young offenders,” he said.

He was responding on the case of two offenders under the age of 21 who received seven and eight strokes of light caning, respectively,  for gang robbery before Kuala Lumpur Sessions Court judge Ahmad Bache on Tuesday.

The offenders, Mohamed Shaznee Jahn Mohamed Yasin, 19, and Redzohaan Abdullah, 20, were caned by a Kajang Prison officer with a light cane following their convictions.

Ahmad Bache later advised both of them not to repeat the offence and said it was to serve as a lesson to others as well.

Senior lawyer Surjan Singh Sidhu said whipping of a young offender should not be carried out in public despite the law allowing for whipping to be carried out within the court premises.

“Caning of an offender should be done in prison as is the procedure especially if the offender had already been earlier sentenced to a jail term,” he said.

“In my view, the judge (who allowed for caning to be carried out in public) was wrong, unless there is another law that says otherwise.”

Former Bar Council chairman K. Ragunath said whipping in public should not be allowed.
“Generally speaking, it is not within our criminal justice system to carry out public caning,” he said.
He said since the offenders were below 21 and did not qualify as adults, the two should be treated separately from adult offenders.

Another criminal lawyer, Afifuddin Ahmad Hafifi, however, said Section 286 of the CPC allowed the court to chose a place for whipping to be carried out.

“It is not rare for a judge to call for whipping to be carried out in court and it has happened before,” he said.

“In the past, such occurrences had not been overruled or questioned by the Court of Appeal.”
However  he said the law should be ammended if there were strong calls for such a provision to be revoked.

Another senior lawyer, Datuk Baljit Singh Sidhu, said although the act may seem “unkind”, it was not prohibited under the CPC for young offenders.

“It is done  as a deterrent to other young offenders,” he said.

***

Provisions related to whipping under the law

SECTION 286 of the Criminal Procedure Code states that when the accused is sentenced to whipping only, the sentence shall be executed at such place and time as the court may direct.

Section 289 of the Criminal Procedure Code provides that females, males sentenced to death and males above the age of 50 shall not be whipped. The section also provides that no sentence of whipping shall be executed in installments.

Section 293 of the Criminal Procedure Code states that when any young offender is convicted before any criminal court of any offence punishable by fine or imprisonment, the court may, instead order order the offender, if a male, to be whipped with not more than ten strokes of a light cane or rattan within the court premises and in the presence, if he desires to be present, of the parent or guardian of that offender.

Under Section 92 of the Child Act 2001, the following provisions shall be followed when executing the order of whipping for a child:

(a) before executing the whipping, the child shall be examined by a medical officer to certify that the child is in a fit state of health to undergo the whipping;
(b) the person shall use a light cane with average force without lifting his hand over his head so that the child’s skin is not cut;
(c) after inflicting a stroke, he shall lift the cane upward and not pull it;
(d) whipping may be inflicted on any part of the body except the face, head, stomach, chest or private parts;
(e) the child shall wear clothes; and
(f) if during the execution of the whipping the medical officer certifies the child is not in a fit state of health to undergo the remainder of the whipping, the whipping shall be finally stopped.

• A child means a person under the age of 18.

***

How caning is carried out in prison

A FORMER Prisons Department officer revealed the caning process would see the cane used soaked in a tub of water for two days.

This is to ensure the cane is heavier and ‘flexible’ to ensure accuracy when the caning takes place.
The cane can only land in the middle of the offender’s buttocks. If it does not land properly, it would not be counted and the process would be repeated.

“Usually the offender will feel the pain for the first three to four strokes and after that his buttocks would be numb. It is common for the skin to tear during the caning,” he said.

“The doctor present would check his heart rate and blood pressure and if the readings shoot up, the doctor has the right to stop the caning process.”

“But the doctor would need to submit a detailed report, explaining why the caning process was stopped.”

He said the caning would be done consecutively and could not be carried out in instalments.

Those who conducted the caning were “professionals”, trained to swing the cane without lifting their arm above their shoulders.

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