Floggings: State violence or effective deterrent?
By Andre Haynes
Stabroek News
December 7, 2003
Joseph Lewis was convicted for armed robbery. A Berbice magistrate ordered that he serve seven years in prison. And that he be whipped.
"The law must fit the crime," declares Magistrate Kumar Doraisami, who prescribed the sentence for Lewis, which when finally carried out will be administered with a tamarind switch.
But Lewis's lawyer Mursa-lene Bacchus believes the sentence is too harsh. He says it contradicts the constitutional protection against cruel and inhuman punishment.
Article 141 of the Constitution does provide for protection from torture or inhuman or degrading punishment or treatment. But it goes on to say that this does not apply to laws that were in place before the Constitution was set up.
This includes the Sum-mary Jurisdiction Offences Act Chapter 8:02, which allows magistrates and judges to impose whippings and floggings on offenders.
"The judiciary only implements, we don't make laws... Parliament legislates and we apply the punishments prescribed," says Chief Justice Carl Singh.
But, in view of the constitutional protection, he considered that on an appropriate motion a judge could pronounce whether these were indeed forms of inhuman punishment.
Floggings are done with the Cat o' Nine Tails; the tamarind switch is used to execute the whipping sentences. These are carried out when all opportunities to appeal are exhausted by the prisoner, who the prison authorities ensure is healthy enough to withstand the punishment.
Attorney-at-law Khemraj Ramjattan also believes these are archaic and brutal punishments which ought to be struck from the statute books. "In the modern age, although we are undeveloped, a penal system that inflicts that kind of punishment is totally antiquated," he says.
Violence an effective deterrent?
"I presume the magistrate would take the gravity of the offence into consideration to determine whether he would impose it," Chief Justice Singh considers.
In a new age of crime in Guyana, where murders and kidnappings are now almost everyday occurrences, an argument for beatings can easily be made by people hoping to deter violent offenders.
In Lewis's case, he wore a mask and was armed with a .38 revolver when he held-up his victim one night. They struggled for about 20 minutes, trading blows, before the victim finally gave in.
Doraisami thinks the law has to be applied, especially now, but both Bacchus and Ramjattan disagree with the notion that whipping or flogging could deter violent crime, particularly since hanging has not.
"When a state flogs and whips offenders it really never deters the further commission of crimes," Ramjattan says, explaining that there has never been any analysis to correlate a reduction in crime with harsher penalties.
Doraisami argues that the punishment needs to be a deterrent to the offender and those people who may be thinking about committing similar offences.
But Ramjattan says not to the extent that the state should retaliate with violence against the citizenry.
"It is atrocious for the state to come to that conclusion, that there is violent crime so we must be violent... it is totally wrong to react in that manner."
He also thinks that penalties ought to be judicially controlled, to ensure that they are administered impartially. Though he admits that, "The administration of punishment is something that a judge can hardly control."
But he says it is important as he sees the chance of the present system being corrupted, where factors are not envisaged by the judge, like a sadistic beater in the prison system, or a racist one.
Ramjattan also says the rehabilitation of the offender is important when penalties are prescribed and he does not think these punishments fulfil this role. "Society has an obligation to rehabilitate these people and we need rehabilitation in the prison system."
An appeal has been filed by Bacchus against the verdicts on the grounds that the trial was conducted in an unfair manner among other issues.