Kelantan has taken a huge step backwards. There’s just no other way to put it. The decision of passing an amendment to the state’s shariah law enactment allowing for public caning to take place in the future is nothing less than farcical. However, let’s analyse this in a detailed matter.
Firstly, when it comes to the philosophy behind laws, we have to ask ourselves the question of what is more important: retribution or rehabilitation? People often revert to crimes as a means of escaping their crippling social condition, especially with regards to economic considerations. This is why many criminals come from a poor background, resorting to petty theft, burglary or drug dealing to make some money quickly. Crime syndicates target these vulnerable people to utilise for their gains, and most of the time it is they who are put behind bars, further legitimising them as a low-risk investment for these syndicates. So, we are taking people who are in hardship, have been manipulated either by criminal coercion or a desperation to survive, whose whole life has been in plain sight of criminals flourishing and punishing them for acting on their convictions. Can we justify this barbarism?
For those who point to fear being an effective deterrent against criminal activity, research says otherwise. In an April 2011 paper (1) on the effect of punishments on criminal deterrence, Donald Ritchie concluded that the rational model often touted to be employed by behavioural theorists to conclude that criminals would act to avoid what they fear does not really work. This is due to most criminals acting irrationally, due to their economic status or consumption of inebriating substances. Moreover, the severity of the punishment was also proven to not affect the rate of deterrence in any significant way. Similar conclusions have been made elsewhere and make great reading. The US’s National Institute of Justice website has many such evidences (2).
The blanket deterrent method of fear and the subsequent regret somehow reforming the criminal is also widely regarded as faulty. So we have largely broken people being caught up in a broken system that throws them back into society even more broken. These people find it extremely hard to integrate into society, due to trauma and stigma against them, and often reoffend. What they have is a psychological problem that causes them to act against societal norms. Even when it comes to burglars, it is often the case that they are unaware or do not qualify for societal systems designed to help them cope financially through legal means.
All of this is more accurately remedied using rehabilitative methods, showing compassion, respect and acknowledging the fact that criminals should have the skills to integrate into society better. The rate of recidivism would drop, those at risk would have real role models to look up to instead of just criminals and, subsequently, the rate of first offenders would drop too. This should be adopted not just in religious laws but common law as well, as the latter is still based in a heavily retributive mindset.
The religious justification of the rationale behind these laws is then proven to not work. Neither as a deterrent, nor as a reforming tool. In the end, we come to the implementation of religious laws due to religion alone. This is classic oppression. The codification of religion often lies in absolutist terms in such a manner that individual interpretation is discouraged. Yet religion exists as personal constructs. Each person’s justification of belief is faith itself. It isn’t true that there is any empirical evidence for the existence of beings that prove, without any doubt, the sanctity of any set of religious beliefs. Religions can only exist as sets of philosophies and so, should be open to criticisms as above.
But Malaysia is a religious nation. Atheists are vilified and are cursed to the depths of whatever version of hell is being purported by the curser. Secularism is demonised and any suggestion of a secular judiciary is thought of as proof of the end of days. But answer me this. If a ‘Muslim’ man is caught for alcohol consumption, is brought to a Shariah court for sentencing but then renounces the version of Islam being purported, even going to the length of calling himself not a Muslim, would he be then tried through civil laws? If so, what strength do religious laws have? If not, is this not an example of religious discrimination?
Whereas civil laws are based in common rights and a consensual understanding of what decent human beings should adhere to, religion is based in archaic laws justified by nothing but factless faith, supported by a difficulty in converting from it due to constant societal brainwashing. Yes, secular philosophies are not based in absolutes but this is accepted and the openness of them to be revised means the sanctity of decent life still can be achievable. Religious laws often reject the human element entirely, doomed to stagnation. Let us move forward from our clunky dual judiciary system onto a fairer system.
Now, cue the distortion of my points.
1. Ritchie, D. Sentencing Matters: Does Imprisonment Deter? A Review of the Evidence. Sentencing Advisory Council. [Online] Victoria State Government, Australia, April 2011. [Cited: July 13, 2017.] https://www.sentencingcouncil.vic.gov.au/…/Does%20Imprisonm….
2. Five Things About Deterrence. National Institute of Justice. [Online] Office of Justice Programs, June 06, 2016. [Cited: July 13, 2017.] https://nij.gov/five-things/pages/deterrence.aspx.
Arveent Kathirtchelvan is the Founder and Chief Coordinator of #Liberasi. This article was first published in the Facebook page of the Independent School of Thinkers on the 17th of July 2017.
By Arveent Kathirtchelvan