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Judicial CP - March 2007

Corpun file 19017


The Star, Kuala Lumpur, 7 March 2007

Jail, rotan for drug trafficking

PENANG: A former college engineering student missed his mother's funeral three years ago because he was facing trial for trafficking in 27.65gm of heroin, a High Court here heard.

Counsel Jagdeep Singh Deo said this in mitigation for his client L. Gobalakrishnan, 28, who yesterday pleaded guilty to a lesser charge of drug possession instead.

Jagdeep Singh urged the court to give Gobalakrishnan an opportunity to become a useful citizen.

"He is extremely remorseful but at the same time, grateful to be given a second chance at life through the amended charge," he added.

Gobalakrishnan admitted having the drugs in Jalan Baru Prai, Bukit Mertajam, at 6pm on April 4, 2001.

Judicial Commissioner Abdul Rahim Uda ordered Gobalakrishnan to be jailed 10 years and whipped 10 times.

1995-2005 Star Publications (Malaysia) Bhd (Co No 10894-D)

Corpun file 19013


The Star, Kuala Lumpur, 7 March 2007

Offenders to pay price as adults

IPOH: They were caught with possession of drugs when they were juveniles, but yesterday, the two youths, who had since turned 22, had to pay the price as adults.

A High Court here sentenced them to 10 years' jail and 10 strokes of the rotan - sending home a strong signal that child drug offenders should not be let off without being given punishment befitting a grave offence.

The saving grace for these two men, however, was that their whipping would be carried out according to the Child Act 2001, whereby a lighter cane would be used with average force.

High Court judge Justice V.T. Singham said that although the two men were children at the time of the offence in 2001, they were above 18 when their case was transferred to the High Court.

The two were 17 years old when they were detained in Tronoh in 2001.

1995-2005 Star Publications (Malaysia) Bhd (Co No 10894-D)

Corpun file 19005


New Straits Times, Kuala Lumpur, 12 March 2007


Whipping up a case

ONE of the reasons Malaysia is a favourite whipping boy of the human rights fraternity is the six strokes of the rotan that could be meted out to those who violate provisions of the Immigration Act. The caning of foreign workers for illegal entry has also aroused much popular anger in the region. Whatever the debate over the admissibility or appropriateness of this form of corporal punishment, there can be no argument that the law does not discriminate between the undocumented workers or the employers who recruit them.

In fact, since caning of immigrants convicted of entering the country illegally seems to be a discretion exercised by the courts, in contrast to the mandatory caning of bosses who hire five or more undocumented workers, as provided under one section of the Immigration Act, the law appears to be loaded against employers.

In practice, however, the scales seem to have been weighted against workers. As of March last year, 362,958 illegal immigrants had been arrested and deported, while only 186 employers had been charged.

Two years ago, Attorney-General Tan Sri Abdul Gani Patail said most of the illegal immigrants were fined and jailed and only a small number were caned. Human rights groups, however, put the number of canings at more than 18,000. Whatever the figures may be, it seems clear that no employer has been lashed.

It was this stark contrast in the punishment that had been meted out that spurred Indonesian Manpower Minister Fahmi Idris to declare in 2005 that he was waiting for a Malaysian court to impose caning on an employer of undocumented workers.

Ever the diplomat, Indonesian deputy chief of mission Abdulrahman Mohamad Fachir was careful not to rake over the coals. But his comment that "we do not mind if our citizens are caned as long as the same applies to employers" is an indication that the issue still rankles two years on. He also made the pertinent observation that "if there are too many illegals, it is because there must be many employers of illegals", an assertion that happily the Immigration Department seems to endorse.

Datuk Ishak Mohamed, its enforcement director, said early this year that since employers and agents were the major culprits behind the influx of illegal immigrants, the department was going after the "two primary pull factors" this year.

Now that the Immigration seems equally determined to see to it that a Malaysian court sentences an employer to caning for hiring illegals, the Indonesian minister's wish may finally come true.

Copyright 2007 The New Straits Times Press (M) Berhad. All rights reserved.

Corpun file 19021

Financial Express, Bangladesh, 22 March 2007

Views & analysis

Illegal migrant workers in Malaysia may escape the cane

By Anil Netto

With the Malaysian Bar calling for the abolition of corporal punishment 'illegal' migrant workers, who are currently being rounded up in a nationwide sweep, may become the first beneficiaries of any change in policy.

At the weekend annual general meeting of the Bar, which comprises 12,000 lawyers in the country, a motion calling for the declaration of whipping as cruel, inhumane and degrading was unanimously adopted. The bar pushed for the abolition of the whipping sentence in various laws, including the Immigration Act.

The two lawyers, Latheefa Koya and Renuka T. Balasubramaniam, who moved the motion asked the Bar to lead public opinion in "rejecting and denouncing the sentence of whipping as it is anachronistic and inconsistent with a compassionate society in a developed nation".

They also pointed out that whipping had failed as a deterrent and asserted that it is time for Malaysia to subscribe to Article 5 of the Universal Declaration of Human Rights, which states that no one should be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

"We are putting forward this motion now because of the increasing numbers of arrests and (cases of) whipping going on now," Latheefa Koya told IPS, pointing to the mass raids currently going on to pick up 'illegal' migrants. "This motion is a step forward in getting rid of corporal punishment altogether."

Corporal punishment -- whipping with a thick rattan cane -- is usually administered as a supplementary penalty for a range of crimes including armed robbery and drug trafficking. But in recent times, it has also been used on migrants deemed to be illegal under the Immigration Act. Those in breach of the Act face fines, jail terms and whipping.

In practice, migrants, including refugees, picked up during raids are either brought to court -- within two weeks -- or sent straight to immigration detention centres for eventual deportation.

Of those brought to court, those with valid documents but who have overstayed face prison terms and deportation. A caning sentence, usually two to three strokes, in addition to a stint in prison, is meted out to those without any documents, according to Latheefa, who works in Legal Aid. Women are not whipped.

Upon being brought to court, migrants often do not know what charges are brought against them, the two lawyers claim. "They are not informed of their right to legal representation, and in any event, are not provided with a reasonable opportunity to seek help. The lack of interpretation in appropriate languages renders the whole legal process a complete travesty of justice and human rights."

Faced with indefinite detention, many of them turn in guilty pleas without realising the full implications.

In the past, rights groups have spoken out against whipping, which leaves large red welts and permanent scars on the buttocks. Rather than having any Islamic connotations, judicial corporal punishment here was first introduced in the late 19th century by British colonial administrators as an outgrowth of British judicial custom and practice at the time.

In their motion, Latheefa and Renuka pointed out that "whipping is clearly intended to be a humiliating experience." They cited New Zealander Aaron Cohen's description of the six strokes he received in 1982 for drug-trafficking:

"It's just incredible pain. More like a burning - like someone sticking an iron on your bum. That's the sort of feeling. Pain - just ultimate pain," he said. "The strokes come at a rate of one a minute - but it seemed like a lifetime to me. I waited and waited for the first one and as soon as I let my breath out - 'baam'. Afterwards my bum looked like a side of beef."

Upon serving their sentences, "illegal" migrants are sent to immigration holding centres for deportation.

In the past, Amnesty International has expressed grave concern over conditions for undocumented migrants held in immigration detention centres, "especially when mass arrests and deportations lead to severe overcrowding. Conditions in some immigration detention centres may be at times so poor as to amount to cruel, inhuman or degrading treatment".

The two lawyers' motion could face some resistance from other lawyers and ordinary Malaysians as migrant workers have often received negative coverage in the media. Many Malaysians are worried about the incidence of serious crime. Others link the rising crime rate with the high number of migrants, estimated to number close to 10 per cent of the population, even though statistics reveal that they are not more prone to crime.

The country's top police officer was reported as saying last month that only 2 per cent of crimes in the country were committed by foreigners. However, he proposed that all foreign workers be confined to their quarters and have their movements monitored by management to prevent them from committing crimes.

Despite the inhuman conditions, Malaysia's relative prosperity has continued to attract thousands of illegal or undocumented workers from such neighbouring countries as Indonesia, Burma, India, the Philippines and Bangladesh where job opportunities are scarce.

For Irene Fernandez, director of the leading migrant rights groups Tenaganita, the lawyers' motion calling for an end to whipping is extremely important. "For us, it is like a tool for torture. It is a very inhuman thing to do," she told IPS.

The impact of whipping, she added, was tremendous and left migrant workers scarred for life. "Whipping should become history. As a nation now celebrating its 50th year of independence, whipping should be out, and not condoned anymore."

Inter Press Service

Copyright @

Corpun file 19349

Borneo Post, Kuching, 27 March 2007

Incestuous stepdad gets reduced sentence, additional strokes

KUCHING: The High Court here yesterday ruled that the 30 years' imprisonment imposed on a former crane operator, who was convicted of raping his stepdaughter on three occasions, was excessive.

The 40-year-old man from Bogag in Bau however failed to realise when he appealed against his sentence that the nine strokes of rotan meted out by the Sessions Court last year was considered too lenient.

Judicial Commissioner Hamid Sultan Abu Backer increased the whipping penalty to 15 strokes of the rotan after reducing the 30-year imprisonment to 13 years' jail.

"To my mind 30 years of imprisonment in aggregate in this case of unchaste act is excessive, and nine strokes (of the rotan) on the facts is too low, and does not subscribe to legislative intention.

"My view is that in cases where it is not a violent crime, and in this case where it is moral in nature, reformative consideration must be foremost in mind when sentencing.

"And for this purpose the sentence of whipping is sufficient deterrence to reflect the seriousness of the offence rather than imprisonment,' he said.

The incestuous rape convict later gave the thumbs up to reporters as a gesture that he had won the appeal even though he was aware that he would be whipped 15 times.

On Aug 15 last year, the Sessions Court convicted the appellant under Section 376B of the Penal Code for the incestuous rape offences.

The stepfather raped the 17-year-old girl thrice between Feb and April in 2005 at their home in Bogag.

The girl, the only daughter of the man's wife from her first marriage, was placed under the custody of the Welfare Department following the discovery of her pregnancy.

She revealed the ordeal to her mother upon finding she was pregnant during a medical check-up.

She said the stepfather had threatened not to give her pocket money if she refused to have sex with him.

The sexual encounters happened at the upper floor of their two-storey house whenever her mother was cooking breakfast on the ground floor.

The appellant was arrested at Bau following a police report lodged on Aug 18, 2005.

The highly publicised case attracted the attention of members of the All Women Action Movement (AWAM) from Kuala Lumpur and Sarawak Women for Women Society (SWWS) who attended the proceeding of the case last year.

The convict was not represented while Senior Federal Counsel in Sarawak DPP Fazillah Begum Abdul Ghani responded yesterday.

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