RECENTLY, a Terengganu mother was sentenced to 14 months’ jail for stealing two packets of Milo worth RM73. The rationale for such a decision by the court was because the woman was a drug addict and a recidivist, i.e. repeat offender.
In the meantime, the mother leaves behind four hungry and vulnerable young children. Unsurprisingly, the sentencing provoked an outcry from many quarters as has been seen on social media.
The member of Parliament for Kuala Selangor, Datuk Seri Dr Dzulkefly Ahmad, has called for mercy to be shown. He was reported to have been exasperated by what was deemed to be “... a decision barren of the concept of proportionality and reasonableness”.
“Proportionality” and “reasonableness” are fundamental legal principles and mostly associated with the area of administrative law, which concerns the decisions and actions of the state – specifically, the branch of government known as the Executive – as the decision-maker. But of course, they can be easily and readily applied to the judiciary as well, with particular emphasis on the decision of sentencing.
The issue brings to mind and is a striking reminder that, although a straightforward thing by definition
and understanding, justice can be controversial and contentious in both its idea and application.
What is justice and how should it be meted out?
We all know that justice is about being or acting in a way that is considered fair by all. Therefore, justice entails “fair-play” and treating everyone alike under
the law.
In musing about the concept of justice, which not only is intensely legal but has theological and philosophical overtones as well, it is stereotypically associated with imperturbable, impartial and objective judgement that is “analytic” in nature – as a precondition and prerequisite in the application and execution of justice.
Such a scenario conjures up the imagery of someone endowed or invested with an office or personality that almost borders upon or has attained “semi-divine” status. Speaking of divinity, we are familiar with divine wrath and anger. Yet, at the same time, there is divine mercy which is rooted in a kind of divine empathy or sympathy.
In Islam, Allah is oft-portrayed
and emphasised as all-merciful, compassionate and forgiving. The New Testament tradition embodied by the epistles would sometimes end with the apostolic benediction or blessing of divine grace. To temper and balance the judgment of the law – as expression of the will of God on earth – with mercy is, therefore, not something alien to us as human creatures.
After all, if we are His vice-regents and stewards, and what more when humans take on the role of judges, should we not also reflect and mimic God’s merciful attribute, that at the same time reveals divine empathy and condescension?
Empathy simply means that the empathiser has the ability to relate to the experience of the other. It could be argued that empathy can even involve going to the extent of “vicariously” i.e. “virtually” – imitatively/simulatively, experiencing or feeling the other person’s situation.
Perhaps it is easier said than done. Especially so, when justice is approached “analytically” or objectively. That is to say, when the focus is “exclusively” on the content of the wrongdoing or felony or misdemeanour of the offender. Thus, the approach is very narrow and strict by its very definition.
The judge is focussed and “skewed” towards the wrongfulness of the act and ignores the surrounding situation, whether in his rehearsal of the facts of the case or in the calculus of the sentence. But judges are, of course, not necessarily constrained in this manner. They have the freedom and flexibility to decide accordingly, i.e. taking into account the wider circumstances such as the motive/motivation/mental state, as part of the mens area or intention, which eventually resulted in the actus reus or criminal act.
When the law is upheld in such a way that completely disregards/excludes the context or reeks of double standards (e.g. biased against those who are politically marginalised, weak, disenfranchised, insignificant, etc. then, paradoxically, justice can become subverted or distorted.
Therefore, empathy is what makes it possible for the law (understood in the general sense) to be contextualised or adapted to the context-specificity of a given situation, without in any way compromising the essential and underlying legal principles (e.g. the natural law concerning the preservation and upholding of life). It means one ought never to lose sight of the need and imperative to “particularise”, as opposed to “universalise”, the law.
In other words, while the “substance” of the law is non-negotiable and universal in appeal, the “form” should ideally be applied on a “case-by-case” basis. Correlated to this is, of course, the adaptability of the law. That is, the law in its form and implementation ought to be able to evolve or adjust according to the exigencies of the situation or time.
As such, when the law is abstracted from the actual and real-world situation, it loses sight of its ultimate purpose, which is to provide justice. And justice precisely means that the law is not only to be executed as it is but is to be tempered according to the mitigating peculiar circumstances of the recipient.
Does it do justice to the recipient too?
In short, justice is upheld not only for the sake of the law (i.e. integrity) but also the recipient (i.e. welfare). This is where there is a need for a “synthetic” approach to justice. Synthetic justice (in contradistinction to analytic justice) is about looking beyond and above the wrongfulness of the act and, by inclusion, the guilt of the recipient of justice.
When a judge looks at the accused synthetically, he is considering the additional facts/factors which cannot be separated (albeit, distinguishable) and divorced from the life experience of the accused person. This is not an argument for pitting rehabilitation over against punishment (in the debate on the criminal justice system), for example.
Instead, we argue that the synthetic aspect should coexist alongside the analytic aspect in the implementation and execution of the law. Both ought to be understood as mutually compatible rather than exclusive of each other.
Even where the synthetic and analytic are not able to be reconciled mathematically as in a formula or equation identity, this should never be a hindrance. After all, we are dealing with people and not abstract numbers.
In the real-world, there are many things which in our experience that are held in tension, without necessarily impinging on core beliefs and fundamental principles.
By the way, the call for empathy here parallels, or is analogous, to principled pragmatism in politics. Be that as it may, balancing (or counter-balancing) the wrongfulness of the act with a sentence that takes into account the originating situation, i.e. which led to the crime, does not in anyway lessen and make light of the guilt.
The guilt is not erased at all. But the law is seen for what it truly is. That is, the law is never meant to be applied for its own sake only but equally also for the good of society and humanity – as the ultimate purpose.
To be sure, justice emanates from the law. But the law does not need justice. It is society that needs justice and, therefore, the law. As such, ironically, only in this way can justice – as the ultimate purpose of the law – be upheld, flourish and shine.
Without empathy, one may be so preoccupied with the unrelenting impulse to ensure the crime is punished so that the law is upheld and justice gets done. However, to reiterate, this can mar the image of the law and becomes an obstruction for justice to be fulfilled in
its complex and multi-perspectival dimensions.
Empathy gives the underlying expression to the role and function of the law as the embodiment and paragon of justice. The law is blind as regards to its substance. However, the law is not impotent as regards to its ability to be translated into the different forms and contexts of life.
As it is, the law must be translated into a courtroom scenario, an adversarial system which pits two parties against each other as presided over by the sitting judge. Likewise, the law has to be interpreted and applied accordingly, i.e. as conditioned by the arguments presented by both sides.
Empathy, where it applies and is relevant, is simply another facet of the need for the law to be translated and interpreted accordingly.
Jason Loh Seong Wei is Head of Social, Law & Human Rights at EMIR Research, an independent think tank focussed
on strategic policy recommendations based on rigorous research.
Comments: letters@thesundaily.com
