Corpun file 25212 at www.corpun.com
The Straits Times, Singapore, 4 July 1962
The Law On Whipping
There are two opinions about the retention of corporal punishment in the Penal Code. But the law as it stands is clear, and the declaratory judgment of the Federal Court of Appeal in the case of A. Eliapermual, convicted of gang robbery, does no more than draw the attention of the courts to the fact that for certain crimes a sentence of whipping is mandatory. Gang robbery is one of them. The 1953 Criminal Justice Ordinance abolished solitary confinement, penal servitude and the cat-o'-nine-tails, substituted the rattan for the cat and left the mandatory provisions for corporal punishment in the Penal Code unchanged.
Section 395 authorises a sentence of penal servitude for life, or rigorous imprisonment for up to ten years, "and in either case with whipping with a cat-o'-nine tails or a rattan." The language is plain enough. In all other sections of the Penal Code where whipping is included in the punishment, the words used are "shall be liable" to be whipped.
The Penal Code itself was not revised and the meaningless "in either case" remains. It would have been better had the legislature been given an opportunity to consider all the provisions relating to corporal punishment, although 1953 -- one of the worst years of the "emergency" -- hardly provided the proper atmosphere for this sort of exercise.
The point of all this, however, is that the Court of Appeal, in its judgment on Monday, referred to the legislature's intentions, and while there cannot in fact be much doubt what its intentions were, it is certainly as well to consider the age of these sections of the Penal Code and which legislature it was that had the intention. We have not attempted to track down the original legislation, but we are certain there is no man alive in this country who was a member of the legislature concerned. And this surely is of considerable importance, although not a matter which the Appeal Court could notice.
There have been enormous changes in penal methods since the unknown year in which section 395 and others relating to corporal punishment made their first appearance. Ought the intentions of long ago continue to bind us? This is for the public to say, and at least the public should be made fully aware that the Appeal Court's judgment reverses the direction in which the administration of justice has been moving. Three years ago the Appeal Court deprecated the use of corporal punishment except in cases involving violence and brutality, although it acknowledged that there might be cases which justified the courts exercising discretion, and imposing corporal punishment even although there hail been no actual violence. Sentences of whipping became extremely rare, and the mandatory provisions apparently were overlooked.
Now that the Court of Appeal, by its judgment, has directed the High Court to add whipping to all sentences of imprisonment for gang robbery, it is as well that the public should understand what this can mean. If five or more persons stole a shirt from a shop, and the shopkeeper was held by the arms during the theft, that would be gang robbery and every man would be whipped.
It is at least of passing interest that another section of the Penal Code, also dealing with gang robbery, provides that an offender who uses a deadly weapon, or attempts to cause death, is liable to a whipping. It would seem superfluous in view of the mandatory provision which applies even when no member of the gang is armed. There are else twenty or more crimes, of varying gravity, which render the offender liable to a whipping -- the
sentence not mandatory.
One result of the Appeal Court's judgment may be to encourage sentences of whipping in these cases, a possibility which ought to engage the legislature's attention. A man convicted twice of theft can be whipped. An orgy of whipping for relatively minor offences may be highly unlikely, but now that the issue of corporal punishment has been raised, a good look at the law seems desirable.
