RECENTLY, a mother from Terengganu was sentenced to 14 months in prison for stealing two Milo packages worth RM73. The justification for such a court decision was that the woman was a drug addict and a repeat offender, that is, a repeat offender.
Meanwhile, the mother leaves behind four hungry and vulnerable young children. Unsurprisingly, the sentencing caused an outcry from many quarters as seen on social media.
Kuala Selangor MP Datuk Seri Dr Dzulkefly Ahmad appealed for mercy. He was reportedly exasperated by what was seen as “…a decision devoid of the concept of proportionality and reasonableness”.
“Proportionality” and “reasonableness” are fundamental legal principles and are primarily associated with the field of administrative law, which relates to the decisions and actions of the state – specifically, the branch of government known as the executive. – as a decision maker. But of course they can be easily and easily applied to the legal system, with particular emphasis on sentencing.
The question is a stark reminder and reminder that although it is a simple thing by definition
and understanding, justice can be controversial and contentious both in concept and in application.
What is justice and how should it be done?
We all know that justice consists in being or acting in a way that is considered right by all. Therefore, justice involves “fair play” and the equal treatment of all under
the law.
In reflecting on the concept of justice, which is not only intensely legal but also has theological and philosophical connotations, it is stereotypically associated with unflinching, impartial and objective judgment that is “analytical” in nature – as a precondition and precondition for justice. application and execution of justice.
Such a scenario conjures up the image of a person endowed with or vested with a function or personality that borders on or has reached a “semi-divine” status. Speaking of divinity, we know divine wrath and wrath. Yet at the same time there is divine mercy that is rooted in a kind of divine empathy or sympathy.
In Islam, Allah is often depicted
and emphasized as all-merciful, compassionate and forgiving. The New Testament tradition embodied in the epistles sometimes ended with the apostolic benediction or blessing of divine grace. Tempering and balancing the judgment of the law – as an expression of God’s will 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 assume the role of judges, shouldn’t we also reflect and emulate the merciful attribute of God, which at the same time reveals empathy and divine condescension?
Empathy simply means that the empathizer has the ability to relate to the experience of another. It could be argued that empathy can even involve going so far as ‘vicariously’, that is, ‘virtually’ – imitatively/simulatively, experiencing or sensing the other person’s situation.
That may be easier said than done. Especially when justice is approached “analytically” or objectively. That is, when the focus is “exclusively” on the content of the wrongdoing or the offender’s crime or misdemeanor. So the approach is very narrow and strict by its very definition.
The judge is focused and “biased” towards the illegality of the act and ignores the surrounding situation, whether in his repetition of the facts of the case or in the calculation of the sentence. But judges are, of course, not necessarily constrained in this way. They have the freedom and flexibility to decide accordingly, i.e. taking into account broader circumstances such as motive/motivation/mental state, within the framework of the men’s area or intention, which ultimately resulted in the actus reus or criminal act.
When the law is enforced in a way that completely ignores/excludes context or smacks of double standards (e.g. biased against those who are politically marginalized, weak, disenfranchised, insignificant, etc., then, paradoxically, the justice can be subverted or distorted.
Empathy is therefore what makes it possible to contextualize or adapt the law (understood in the general sense) to the contextual specificity of a given situation, without compromising the essential and underlying legal principles (for example the natural law concerning the preservation and maintenance of life). This means that we must never lose sight of the need and imperative to “particularize”, as opposed to “universalize”, the law.
In other words, while the “substance” of the law is non-negotiable and universal on appeal, the “form” should ideally be applied on a “case by case” basis. Correlated to this, of course, is the adaptability of the law. That is to say that the law, in its form and its implementation, must be able to evolve or adapt to the requirements of the situation or the time.
Thus, when the law is abstracted from the current and real situation, it loses sight of its ultimate goal, which is to deliver justice. And justice precisely means that the law must not only be executed as it is, but must be tempered according to the particular mitigating circumstances of the beneficiary.
Does it also do justice to the recipient?
In short, justice is upheld not only for the sake of the law (i.e. integrity) but also for the beneficiary (i.e. welfare). This is where a “synthetic” approach to justice is needed. Synthetic justice (as opposed to analytical justice) consists of looking beyond the wrongfulness of the act and, by inclusion, the guilt of the recipient of justice.
When a judge examines the accused synthetically, they consider additional facts/factors that cannot be separated (although distinguishable) and divorced from the life experience of the accused. This is not an argument for opposing rehabilitation to punishment (in the debate on criminal justice), for example.
Instead, we argue that the synthetic aspect should coexist with the analytical aspect in the implementation and enforcement of the law. The two should be understood as mutually compatible rather than exclusive of each other.
Even where the synthetic and the analytical cannot be reconciled mathematically as in an identical formula or equation, this should never be an obstacle. After all, we are dealing with people, not abstract numbers.
In the real world, there are many things that in our experience are held in tension, without necessarily encroaching on core beliefs and fundamental principles.
Incidentally, the call for empathy here is parallel or analogous to principled pragmatism in politics. Be that as it may, balancing (or counterbalancing) the unlawfulness of the act with a sentence that takes into account the original situation, that is to say that led to the crime, does not attenuate and in no way lessens the guilt.
The guilt is not erased at all. But the law is seen for what it really is. That is to say, the law is never intended to be enforced solely for its own sake, but also for the good of society and humanity – as the ultimate goal.
Certainly, 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 thus can justice – as the ultimate goal of law – be maintained, flourish and shine.
Without empathy, one can be so preoccupied with the relentless impulse to ensure that crime is punished so that the law is upheld and justice done. However, I repeat, it can tarnish the image of the law and become an obstacle to the achievement of justice in
its complex and multi-perspective 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 to its substance. However, the law is not powerless in terms of its ability to translate into the different forms and contexts of life.
As it stands, the law must be translated into a courtroom scenario, an adversarial system that pits two parties against each other under the presiding judge. Similarly, the law must be interpreted and applied accordingly, that is, conditioned by the arguments presented by both parties.
Empathy, where it applies and is relevant, is just another facet of the need to translate and interpret the law accordingly.
Jason Loh Seong Wei is Head of Social, Legal and Human Rights Issues at EMIR Research, an independent think tank focused on
on strategic policy recommendations based on rigorous research.
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