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THE WORLD
Judicial CP - February 2015



Corpun file 25976 at www.corpun.com

The Week, London, 7 February 2015, p.15

Briefing

The whip, the cane and the birch

The judicial flogging of Saudi blogger Raif Badawi has provoked outrage around the world; yet not long ago we were flogging too


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What was Badawl's sentence?
He was sentenced to 1,000 lashes -- to be administered in 20 weekly doses of 50 -- and ten years in prison for criticising Saudi Arabia's powerful clerics and ridiculing the country's morality police. This has been attacked as both inhumane and completely out of scale with the alleged offence -- and not just by Western liberals, but by many Muslims (see box) who say it goes against sharia law. The Prophet Mohammed listed three crimes as punishable by flogging: adultery, falsely accusing someone of adultery, and drinking alcohol. Even in those cases, it isn't meant to cause physical harm, says Abdulaziz AlGasim, a former judge who now runs a law firm in Riyadh: it is intended as a symbolic act; that's why the stick must have a specific description and must not leave a permanent mark on the skin. "In sharia, flogging as punishment was meant to be very mild and doesn't aim to cause pain. But it is now being used as a tool of torture."

For how long was whipping a common practice in Britain?
From Roman times until the 19th century, minor offenders against the law (even the insane) were subject to whipping, pillory and the stocks, or, in the late 18th century, the cat-o'-nine-tails. Things were even worse in Scotland, where corporal punishment until the end of the 18th century involved dismembering, branding, removing tongues, whipping, nailing people to the gallows, and putting them in stocks. Only in the relatively recent past did Britain outlaw the lash. The public whipping of women was abolished in 1817; of men in 1862. However, the courts retained the power to order whippings (of men) in cases involving violent crimes until as late as 1948, and flogging persisted in prisons as a punishment for prisoners committing serious assaults on prison staff (ordered by visiting justices) until it was abolished in 1967.

And what about the use of flogging in the Armed Forces?
It was once a common disciplinary measure (Winston Churchill described British naval tradition as nothing but "rum, sodomy, and the lash"). Aboard ships, the cat-o'-nine-tails was used for severe formal punishment, while a "rope's end" was used to administer on-the-spot discipline. In the Napoleonic Wars, the maximum number of lashes that could be inflicted on soldiers in the British Army reached 1,200, enough to kill or disable a man. But there was growing concern that far from being reformatory, flogging was ineffective -- or worse, turned good men into bad and deterred recruiting. So in the first half of the 19th century Britain outlawed flogging in the sepoy (native) regiments of India. However, it was banned for British soldiers only in 1881 (and for African soldiers in the colonies in 1946). The Navy "suspended" flogging in 1879 but did not ban it outright until 1957.

Why was it seen as ineffective?
In the mid-19th century a series of criminal law commissions concluded that flogging was an unsuitable penalty because it inflicted "an ignominious and indelible disgrace on the offender rendered him callous", and "obstructed his return to any honest course of life". Paradoxically, just as it was going out of fashion as a punishment for adults, flogging was coming into fashion as a punishment for juvenile offenders. Victorian social reformers, increasingly concerned about the practice of incarcerating youngsters in adult jails, came to see it as the best substitute.

What was the thinking behind that?
That a key factor in juvenile offending was the desire among adult boys to show they were "grown-up". So one way of persuading them otherwise, the theory went, was to give them what was seen as a boy's punishment -- offenders sentenced to birching had the indignity of receiving the birch on their bare bottoms. The practice was taken up with enthusiasm by the courts, especially in Scotland, where the power to order birching applied to boys up to the age of 16 (14 in England and Wales), and the courts could specify the use of a (supposedly more severe) leather tawse for culprits between 14 and 16. Judicial birching was abolished with other forms of judicial corporal punishment in 1948, though almost as soon as it was gone, people were campaigning for its reintroduction, and have continued to do so ever since. (Tory MP Tony Marlow did so as recently as the 1990s.) The Isle of Man only abolished the birch for juvenile offenders in the early 1990s.

For how long were beatings permitted in schools?
The first attempt to get Parliament to end school beating came in 1669 when a "lively boy" presented a petition to protest against "that intolerable grievance our youth lie under". But though both teachers and parents were limited by a law of 1860 to inflicting "reasonable" chastisement, corporal punishment in schools continued. In 1783 Poland became the first country to ban it in schools, but the practice was banned in Britain's state schools only in 1987 and private schools in 1999. Here, too, campaigners have sought to reverse the ban. In 2005 there was an unsuccessful challenge to it by headmasters of private Christian schools, who argued that it was a breach of their freedom of religion. A 2008 poll of 6,162 UK teachers by the TES found that one in five teachers would still back the use of caning in "extreme cases".

Is it a similar story elsewhere?
Broadly, yes. In Delaware, the criminal code permitted judicial floggings until 1972; even in liberal Canada, strapping of prisoners in jails was allowed until 1970. Countries where teachers still use force include the US: a Supreme Court ruling in 1977 found that a constitutional ban on "cruel and unusual punishment" applied only to judicial proceedings. Currently some 33 countries still practise judicial corporal punishment, including Indonesia (where a thief may be publicly whipped), Kenya (where "village drunks" are caned), and Singapore, where caning sentences are common. Saudi Arabia is one of several Muslim countries that whip or cane suspected offenders -- others include Iran, United Arab Emirates, Qatar and Yemen.

The use of the whip in Saudi Arabia
In an effort to make Saudi Arabia's courts conform more closely to the demands of a modern nation state, the late King Abdullah issued decrees in 2007 calling for legal and judicial overhauls of the practice of flogging, and last November ordered a committee to be formed to compile and codify sharia in Saudi Arabia. But few changes occurred, not least because Saudi Arabia's legal system isn't codified and doesn't rely on judicial precedent, so individual judges have wide latitude in interpreting religious texts. A legal code is thus unlikely to end the imposition of flogging as a punishment, though it might limit its use. For many, the Badawi case reflects the anxiety Saudi rulers feel about displeasing the religious establishment. Anyone in the regime who calls for even limited reform risks losing power. "The lashing of Badawi," says Kamran Bokhari, an adviser to the global intelligence firm Stratfor, "is the symptom of a deeper malaise. The kingdom is sick, and needs rejuvenation. But it is dealing with reformist dissent along with shia dissent, jihadis, Isis and the rise of Iran, all at the same time. There is only so much bandwidth."

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