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The government is undertaking a wide-ranging review of the country’s core criminal laws, this includes the Penal Code, the Criminal Procedure Code, and the Evidence Act, as well as sentencing and punishment. One of the proposed reforms include abolishing mandatory judicial caning and reviewing the role of medical officers in the punishment. On this episode of #ConsiderThis Melisa Idris speaks with Dr Haezreena Begum Abdul Hamid, Criminologist & Senior Lecturer at Universiti Malaya’s Faculty of Law and member of the Criminal Law Reform Committee (CLRC), as well as with Dr Firdaus Aziz, Senior Lecturer and Deputy Dean for Student Affairs at UM’s Faculty of Law where his work centres on medical law and ethics, and the legal-ethical dimensions of emerging technologies.
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00:11Hello and good evening. I'm Melissa Idris. Welcome to Consider This.
00:14This is the show where we want you to consider and then reconsider what you know of the news of
00:18the day.
00:19So the government is undertaking a wide-ranging review of the country's core criminal laws.
00:24This includes the Penal Code, the Criminal Procedure Code and the Evidence Act as well as sentencing and punishment.
00:32Some questions we'd like to explore tonight on the show is what exactly should criminal law reform look like
00:38and how do we do this without compromising fairness?
00:42And finally, what do these reforms mean for you and me, for the victims, for the witnesses, for the accused
00:50and for public confidence in the rule of law?
00:53Well, joining me to help us think through all of these questions, I have with me Dr. Hazrina Begum Abdul
00:59Hamid
00:59who is a Criminologist and Senior Lecturer at University of Malaysia's Faculty of Law.
01:04She is part of the Criminal Law Reform Committee and has been appointed the Head Researcher for UM.
01:12I also have in the studio with me Dr. Fredas Aziz who is a Senior Lecturer and Deputy Dean for
01:17Student Affairs at UM's Faculty of Law
01:19where his work centres on medical law and ethics as well as the legal ethical dimensions of emerging technologies.
01:27Both of you, welcome to the show. Thank you so much for joining me.
01:30I might begin with you, Dr. Hazrina.
01:32When we talk about this criminal law reform, can you explain a little bit more about the work that you're
01:39doing
01:40with the Criminal Law Reform Committee?
01:42Okay. So, Dato' Sri Azalina, the Ministry in the Prime Minister's Department, who's in charge of the Law Reform Division,
01:54So, they have decided that she and her team, including Dato' Tiago Ganesan,
02:02so they initiated this big reform for our criminal laws because our laws are basically,
02:10particularly the criminal law, is premised on laws as old as 19th century.
02:17So, although we've been having a lot of amendments, but these amendments are just minor provisions, insertions.
02:25So, this is a massive reform to look at all the provisions, whichever that needs upgrading or some may be
02:37obsolete.
02:39So, that is where we look at and where the researchers come in.
02:45So, we have started this project actually since last year, as early as April.
02:53So, my appointment was in March.
02:55And we've gone through many processes where we engage with stakeholders, the police, AGC, Welfare Department, doctors and NGOs.
03:10And it's still an ongoing process.
03:12So, I'm with you. This is a mammoth task to be undertaking.
03:16I think for many of us whose only encounter with the justice system is maybe through headlines.
03:23Talk to me a little bit about why this matters for the average citizen.
03:27Why should we care that these reforms...
03:29How do these reforms change somebody's experience if they become a victim or they become a witness or they become
03:36an accused person?
03:37Well, the provisions is meant to create a fairer and more human rights-based provision and experience for both victims
03:51and accused even.
03:53For the accused, for example, we have the sentencing and punishment reforms where the proposal which has been submitted
04:06to the Law Reform Division is to abolish the mandatory caning.
04:13Because if you... Based on our research, Malaysia has the highest number of caning in Southeast Asia.
04:21Wow.
04:22Yeah.
04:23So, this is not to abolish caning altogether, but to abolish mandatory caning.
04:29But this is still in the proposal stage.
04:32Why? Because there are many reasons to that.
04:34You know, we cannot ratify the Convention Against Torture if we are still implementing judicial caning.
04:41But that may be in time to come.
04:45And then, number two, we actually look at recidivism rate.
04:48Whether judicial caning can actually reduce recidivism rate.
04:53But at the moment, there is no solid or compelling, tangible proof that it does, particularly in drugs cases.
05:02And of course, there are many other reasons.
05:06Let's zoom in on mandatory caning.
05:09Talk to me about how... When is this punishment applied?
05:14Who does it apply to?
05:15And why has this... Has mandatory caning specifically become part of the broader criminal law reform focus?
05:23Okay.
05:24Before this, we had the abolition of death penalty, right?
05:29So, you still have the death penalty, but the mandatory part is abolished.
05:36And it's still on the road to total abolition.
05:40So, the situation now is to give the powers to the court.
05:46So, it becomes discretionary.
05:48So, similarly, we start looking at caning as well.
05:51So, maybe after this, there is proposal to abolish mandatory imprisonment as well.
05:57But at the moment, we are still looking at whipping.
06:00Whipping.
06:01So, we are doing it step by step.
06:04As I said, when we abolish the mandatory caning, for reasons of many reasons, as I said,
06:11also, they are saying that it's torturous, it's archaic.
06:14Whipping and caning are the same things?
06:15Yes.
06:16Okay.
06:16Sorry about that.
06:17So, who, what crimes get the punishment of mandatory caning?
06:25Oh, we have so many crimes.
06:26So many.
06:27Oh, okay.
06:27Maybe give me an example of who, what the current status quo is.
06:31Okay.
06:32For rape, of course, there's caning, sexual offences.
06:35Yeah, sexual offences.
06:36And then, you do have for robbery.
06:40And then, you do have for certain violent crimes.
06:45And drugs, you said?
06:46Yes.
06:46For drug crimes.
06:47Yes, drug crimes.
06:48A lot of drug crimes that warrants caning.
06:51Okay.
06:52And you still see high number of recidivism rate despite the caning.
06:57Despite the caning.
06:59So, what it gives, it gives trauma, but it does not reduce the repeat crimes.
07:05Maybe this is a good point in the conversation to bring Dr. Freedaz into the conversation.
07:09I didn't realise that doctors are part of the caning process.
07:14Can you talk to me a little bit about the current system, the current process?
07:21For many of us who, this is just a word and it's a concept.
07:26What is caning exactly?
07:28What does it do to the human body?
07:31Well, before I joined the research team, I didn't know that medical doctors were involved in the caning process as
07:38well.
07:38So, when we started out with this project, Dr. Azir and I actually made all of us to watch the
07:46videos.
07:47And you can watch, everyone can watch the videos on YouTube, how the caning process, how the caning is being
07:53implemented.
07:58So, your question is on medical doctors' involvement.
08:00Medical doctors, yeah.
08:01Why are medical doctors involved, actually?
08:03Under the current legal system, medical doctors are involved in different stages of the caning process.
08:08Before, during and after.
08:10So, before the caning process is implemented, doctors will carry out medical assessment to identify medical conditions, essentially to certify,
08:24can we say certify, to certify that the prisoners are fit to undergo the weeping process or caning process.
08:34And then, during the process, medical doctors will be present on site, essentially to monitor the condition of the prisoner,
08:44whether the condition, whether the prisoners, you know, maybe suffer severe, you know, injuries, and essentially to see whether they
08:54are fit to continue with the process.
08:57And then, following, after the condition of the caning, then they will provide medical care, if it's necessary, if it's
09:06needed.
09:07Okay, alright.
09:08So, this is where I'm struggling a little bit with the involvement of medical doctors.
09:12Yes, it's to minimize harm to the person being caned or whipped.
09:20But, fundamentally, isn't that in opposition to the Hippocratic Oath of do no harm?
09:27How do we reconcile these two conflicting principles?
09:31Yeah.
09:33So, this is the argument that we keep hearing in our town hall.
09:37So, we do have medical doctors who argue that we need the presence of medical doctors.
09:43Because the idea is to protect or to give, to provide safeguards, right, to protect prisoners from being, you know,
09:53harmed unnecessarily, you know.
09:55And at the same time, we also have medical doctors who strictly or violently oppose, all right, the involvement of
10:02medical doctors.
10:02Because they see that their involvement are contradicting with or contravening with the principles of medical ethics.
10:12As we know that medical professionals are governed or guided by principles of medical ethics, no principle of beneficence, no
10:23maleficence.
10:24Beneficence requires doctors to act in the best interest of their patients, right?
10:31So, you can say that prisoners are their patients too because in medical professions, they see patients, they treat everyone
10:42equally.
10:42Whether you are a model citizen or whether you are a criminal, you should be treated equally, right?
10:48So, they need to act in the best interest of their patients.
10:52In this case, the prisoners' best interest.
10:55Non-maleficence requires doctors to do no harm or to avoid unnecessary harm, right?
11:03So, one can argue that if medical doctors are involved in this process, it's quite difficult to reconcile with the
11:11principle of medical ethics
11:13It's because medical doctors essentially will be involved in the process that intentionally causing harm to the prisoners.
11:22So, it's quite difficult to, it's a dilemma, right?
11:26But, but from, from the, from the international standard, this position is reflected in the World Medical Association's Decorations of
11:35Tokyo,
11:37which states that medical doctors should not get involved in a cruel, inhuman or degrading treatment or punishment.
11:47Oh, okay.
11:48Yes, and also reflected in the United Nations' Principle of Medical Ethics.
11:52So, we have this dilemma in front of us.
11:55What are the reforms being proposed, Dr. Hasbina?
11:58So, the reforms are to abolish the mandatory weeping, because, you know, it's more of, you know, educating our public
12:06first.
12:07Because I think our public is very used to thinking that caning as a form of effective deterrent,
12:14when research has shown that it is not a form of, necessarily a form of effective deterrent,
12:21because deterrents come from family support, good rehab programs, etc.
12:26So, so that is the proposal at first, and we are giving the, leaving the caning to the discretion of
12:36the court,
12:36meaning that the courts still have the power to order caning.
12:42Another one is that the proposal is also to half, to half the number of maximum caning,
12:50because at the moment, the maximum caning reaches to 24.
12:5424 strokes?
12:56Yes, one go.
12:58At one go?
12:59Yeah.
12:59Usually, it will be implemented one go.
13:01Oh, wow.
13:02Yeah.
13:03So, this is, of course, always given to those who commit the most heinous crimes,
13:09but still, 24, it's quite high.
13:12So, the proposal is also to half that into 12.
13:17So, these are among the proposals that's out there,
13:23under the Criminal Procedure Code,
13:27on caning and in the Penal Code as well,
13:30all the offenses under the Penal Code.
13:33Dr. Freitas, what do you think,
13:35what principles do you think should guide policymakers here
13:37as they consider these proposed reforms?
13:42I think we need to consider,
13:44first, medical professionals' involvement in this process.
13:54You have to respect the principles that guide the profession.
14:00And, number two, I think, public confidence in, you know,
14:09because we are involving medical doctors.
14:11So, why is the fine line between health care and criminal justice system, you know?
14:17So, we have to ensure that there's public confidence, you know,
14:21in both health care system as well as criminal justice system.
14:25Yes.
14:26It's so nuanced, isn't it?
14:28It really is a tough position.
14:30What have you been hearing in these town halls that you've been having
14:33when you go, what are the stakeholders telling you?
14:38Okay, before that, I just want to add that
14:39this abolition of mandatory caning,
14:42it does not apply just to the Penal Code,
14:44it's an omnibus provision,
14:46meaning that we are looking at all the acts that's available in Malaysia.
14:51So, it includes Dangerous Drugs Act,
14:54Kidnapping Act, Firearms Increased Penalties Act.
14:57That's quite, it's about 11 acts that has mandatory caning.
15:02Okay, so it will affect all of that.
15:04Yeah.
15:04So, there's about, I think, 60 over provisions or more on caning,
15:09but mandatory caning is quite a number from these acts.
15:14So, yeah, so that, so what I'm saying is that although we are doing the reforms
15:19on these three acts, but in terms of sentencing and punishment,
15:22it's an omnibus provision, meaning that it's looking at all the acts in Malaysia.
15:28It will apply to all.
15:29Yes, yes.
15:30So, yeah, similarly like what we did with the death penalty.
15:34So, for the town halls, actually, this, we had that town hall last year
15:43because this one, actually, it's in the final stages, actually,
15:48to move into parliament, but they're still having some engagement.
15:53The Law Reform Division is still having some getting comments
15:57before it goes into parliament.
16:00But during that time, there were mixed views, of course.
16:03There are people who oppose to the abolition of mandatory caning
16:07because although we say it's mandatory, but they presume that
16:13if it's abolition of mandatory, then the judge will not give caning.
16:18But we were trying to assure that, yes, there will still be caning,
16:22but we give the powers back to the judge.
16:24Well, I remember we had the same types of conversations and public feedback
16:28when we talked about abolishing the mandatory death penalty, right?
16:31So, it really is about how the issue is being communicated to the public.
16:37And I think work like yours, research as evidence-backed work,
16:42will go a long way in providing some comfort to people
16:46who may have questions still.
16:47Can I ask you about, if we were to zoom out and look at other areas of reform,
16:54mandatory caning is one.
16:55Are there other areas where you think that this is really going to
16:58maybe move the needle a little bit in the way our criminal justice system
17:01has been operating?
17:03Are you asking about other reforms?
17:06Yeah, there are other reforms, other proposals we're talking about
17:09trying to expedite transfer of cases from the lower courts to high courts,
17:15especially in cases of drugs, where they require the reports
17:20to be finalised from the chemist.
17:24For example, sometimes it takes about a year.
17:27So, it's time-consuming.
17:30Oh, wow.
17:30Yeah.
17:30So, we're trying to see how it can be streamlined to give high court some powers
17:35to monitor.
17:37You know, because it's taxpayers' money.
17:39When we talk about delay time, yeah, also justice for the persons who are waiting.
17:45Yeah, waiting a year for a chemist's report.
17:47So, there are situations like that.
17:50And then there are also proposals on anticipatory bail.
17:55But this is only for certain offences on certain cases where a person can request for bail
18:06in the event that the person is arrested.
18:09But for me to explain, it's quite long.
18:12But it's basically that.
18:13Because at the moment, bail is only post-arrest.
18:16So, we're talking about for the court to grant bail pre-arrest in case the person is arrested.
18:23So, that's one.
18:24But only for certain cases.
18:26And then we have proposals on enhancing the community service order to include many other offences.
18:39Also, one of the reasons to, you know, give some room for prison because of the overcrowding.
18:46Overcrowding, definitely.
18:47Yes.
18:48And then we do have also provisions on having an appropriate adult once a person is arrested,
18:55particularly vulnerable detainees.
18:58Yeah.
18:58So, that's among many others.
19:00Yeah.
19:00So, I think these are some of the few that's quite outstanding.
19:04Are these considered significant reforms or can they feasibly be implemented and implemented well
19:12should they be accepted as reforms?
19:14Is this really going to move the needle?
19:18Because we talked in the beginning about how we're undertaking this really massive overhaul.
19:23Are these considered small tweaks or really changing the way we approach our criminal justice system?
19:31I think it's changing the way we approach criminal justice.
19:34We have to move on.
19:35India had this big, massive revamp of their Indian laws.
19:41If not, it was called the Indian Penal Code.
19:43Now, it's called the Bharat Nayya Sanhita, where they have anticipatory bail.
19:48They have many, many provisions.
19:50So, we and many entries have done these massive reforms.
19:55So, we need to not just stay and be complacent with the old laws, 19th century-based law.
20:03Although we've been doing a lot of, like I said, there's been amendments.
20:07But we're talking about massive reforms.
20:10So, I think that this is a way that we need to approach the criminal justice.
20:17Times have changed.
20:19So, we need to look at it in a more structured way.
20:23Do you think that these reforms that are being proposed are likely to be accepted?
20:29I'm just wondering what the biggest obstacles remain.
20:33You've done all the work.
20:34You've done all the hard work behind the scenes.
20:36Now comes the part where policymakers deliberate.
20:39And I think a large part of that also will boil down to how the public receives the proposed reforms.
20:47I'm curious to know from the both of you where you think the biggest challenges are.
20:51And if you think that these proposals will be accepted, what would be the kind of barrier to that being
20:59accepted?
21:00If I may be here, Dr. Ferdas.
21:01Well, for the role of medical practitioners, we don't have a standing or specific position for now.
21:14Whether or not we should remove doctors from the process altogether or how we redefine the role in the process.
21:21We don't have a particular idea at this stage.
21:25So, what we're going to do, we're going to carry out a focus group discussion.
21:29So, we've done a series of town hall.
21:31We received a few comments.
21:34But I think for this particular topic, it's very difficult to decide.
21:39So, we will leave it to the key stakeholders to guide us.
21:44Who would be the key stakeholders in this case?
21:45For this particular topic, I'm looking at medical doctors themselves.
21:51So, we do have medical doctors who are stationed in, who are posted in prisons.
21:56So, we want to know their experience, their challenges and what they think about the process, the entire process.
22:04So, we want to capture their own experience.
22:07And we're also thinking of bringing in ethicists, medical ethics, even policy makers.
22:15We want to bring in regulators, medical councils, medical association.
22:20So, I think these are the key stakeholders that we need to hear from them.
22:24Okay.
22:24It's definitely important to get all the perspectives of this different.
22:27Is it difficult if, say, policymakers do not understand the medical ethics of it versus the medical reality of it?
22:35Would it be difficult to see each other's perspectives, do you think?
22:38I don't think so.
22:39I think there must be a conversation.
22:42We have to start with the conversation.
22:43Definitely.
22:44Dr. Ezrin.
22:46Challenges do come from enforcers, particularly the police.
22:52I mean, so far they've been okay, quite receptive.
22:56But there are some provisions that they are not very supportive.
23:03But I think that that stems from the part that they're not very clear about how it will be implemented.
23:10For example, they feel that from the policing aspect, perhaps they feel that if we are giving too much of
23:19opportunities or lacks in certain regulations,
23:24it will be difficult for them to locate the accused, for example, like anticipatory bail, as I said.
23:31So, sometimes they're quite worried that, you know, if we give such a thing, it's hard for us to locate
23:36them.
23:37If we give them, you know, one of it was also to enhance bail, to not just look at monetary
23:43terms, you know, look at that person's affordability, his economic situation.
23:50So, there's a lot of it.
23:51So, what do you tell them when they come to you and say, this is going to make our jobs
23:54harder to locate the accused?
23:56What do you say to them to say, well, what would be your rationale to them?
24:00Yeah, for me, I will just take on whatever they say because…
24:05As feedback.
24:05Yeah, as feedback.
24:06Because the thing is that, you know, because policing, they look at it in terms of how to enforce their
24:13work.
24:14It is a specific lens.
24:15Yeah, yeah.
24:16But we are looking at it from a bigger lens, you know, we're looking at it from a human rights
24:20perspective.
24:20Because at the end of the day, you must know that, you know, a person is innocent until proven guilty.
24:27And that person has the right.
24:28Yeah, you cannot curb the right and, you know, stop the right just because that person is suspected of doing
24:36a crime.
24:37You have all the, you know, you can go ahead and charge.
24:41But at the same time, you have to preserve that person's right to defend themselves, you know, for liberty and
24:47all that thing.
24:47So, yeah, there are many others that they are quite…
24:53I think it's more of their worried kind of thing of whether they can implement their work or carry out
24:59their enforcement effectively.
25:01But I think that should not be a problem.
25:05It's always when you're complacent and used to certain things, so of course there will be changes.
25:09And what about policy makers?
25:11Are you confident that policy makers will understand the nature and need for reform?
25:18Yeah, that is also a challenge.
25:21You know, sometimes even the AGC, we do have some proposals for reforms.
25:30For example, where the one of the proposals is to give the defence, the documents, all the documents prior to
25:41trial.
25:42So, they are quite reserved on this when a lot of countries are practicing that.
25:48Because you give the…
25:49Yeah, but we have to think about equality of arms, fair trial.
25:54You see, so we cannot be having one accused who's entitled to know the charges against the person
26:01should know what are the evidence, you know, that you have against me.
26:05And if at all, you know, I'm guilty, yes, please.
26:07But I think because we're complacent with the part that defence would only have certain documents,
26:14so they think that it's an issue of security and all that, when it's not actually.
26:19It is an issue of fairness and equality of arms.
26:22Well, this has been really fascinating to learn so much about the ways in which the criminal law system works.
26:28And I appreciate both of you for not just coming on the show and telling us about it,
26:32but also the work that's been happening behind the scenes.
26:34I can imagine the countless hours and nights that you've put into this.
26:38Thank you both for your time.
26:40You're welcome.
26:41That's all the time we have for you on this episode of Consider This.
26:44I'm Melissa Idris, signing off for the evening.
26:46Thank you so much for watching.
26:47Good night.
27:04I'm Melissa Idris, signing off for the evening.
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