RECENTLY, a mother from Terengganu was sentenced to 14 months in jail for (simply) stealing two packages of Milo 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.
In the meantime, the mother leaves four hungry and vulnerable young children at home.
Unsurprisingly, the sentencing caused an uproar in many quarters, as seen on social media. Kuala Selangor MP 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 area of administrative law which concerns the decisions and actions of the state – in particular (and principally/primarily) the branch of government known as the executive name – the decision maker.
But of course they could easily and easily be applied to the justice system – with a particular focus on sentencing.
The question is a stark reminder and reminder that although a simple concept by definition and understanding, justice can be controversial and contentious in both its idea and its application.
What is justice? How should it be distributed?
We all know that justice consists in being or acting in a way that is considered right by all (with joy or reluctance). Therefore, justice implies “fair play” and the equal treatment of everyone before the law.
In thinking about the concept of justice, which is not only intensely legal but also has theological and philosophical connotations, it is (stereo)typically associated with unflinching, impartial and objective judgment that is “analytical” in nature – as a prerequisite and prerequisite in the 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 described and promoted as being 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 simultaneously reveals empathy and divine condescension?
Empathy simply means that the empathizer has the ability to relate to the experience of another.
One could argue that empathy can even involve going so far as to ‘vicariously’ (meaning ‘virtually’ – by imitation/simulation) experiencing or feeling 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 mens rea 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 stinks 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 (keadaan semasa) without (in any way) compromising the essential and underlying legal principles. (for example the natural law concerning the preservation and maintenance of life).
This means never losing 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 of time.
So, when the law is abstracted from the real and actual 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 recipient.
Does it also do justice to the recipient?
In short, justice is upheld not only in the name of the law (integrity) but also of the beneficiary (well-being).
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 in our experience that are held in tension – without necessarily infringing on core beliefs and fundamentals.
Incidentally, the call for empathy here is parallel or analogous to principled pragmatism in politics.
Be that as it may, balancing (or counterbalancing) the illegality of the act with a sentence that takes into account the original situation that led to the crime does not attenuate or attenuate 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 could be so preoccupied with the relentless impulse to ensure that crime is punished so that the law is upheld and justice done.
However, to reiterate, this 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. The law is not, however, powerless in terms of its ability to be translated into the different forms and contexts of life.
As it stands, the law must already be translated into the courtroom scenario – an adversarial system that pits two parties against each other under the presidency of the sitting judge. Similarly, the law must be interpreted and applied accordingly, based on 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. – July 15, 2022.
* Jason Loh Seong Wei is Head of Social, Legal and Human Rights at Emir Research.
* This is the opinion of the author or publication and does not necessarily represent the views of The Malaysian Insight. The article may be edited for brevity and clarity.