Me L Raj Pentiah - «Koman fer kriminel»: The process of criminalisation

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THE PROLOGUE; The Back Drop against which the discussion is set: -

Our Society has been witnessing the domineering effects of social, political and economic climates that some people have even stated very often as ‘dictatorial’. The irrebuttable cornerstone of the Government’s rise to power during the recent years has been a broad appeal to social and economic development built on the fundaments of socio-economic justice in turn based on meritocracy, competency and equal opportunities against opaque measures of favouritism for a few chosen ones lucky enough to be ‘cooking and eating in the same kitchen’ besides acknowledging the Freedom of the Press and bestowing the latter with clear Legislative Rights to obtain, gather and disseminate information to the People.

Instead and in lieu, could it be that the Government in its urge to govern, as it deems fit because (as someone did in effect say) government is government and government decides, has not differentiated in identifying and naming certain individuals belonging to: Trade Unions, Political Parties, Militant Caucuses, members of the Lesbian-Gay-Bisexual and Tran-sexual Activists, people with divergent cultures such as fellow brothers and sisters belonging to the ‘Rastafarian’ families and or the Independent Radios (and or the Press) -  as potential threats to the acceptable socio-political norms?

Could it be argued that each of these individuals and or groups, named above (and the list is not exhaustive) have achieved the capacity to hold the State to ransom thus urging the Government to pursue an agenda of Legal Reforms, unprecedented in their severity and punitive intent? Or could it be argued that such convictions simply seem to predominate under the actual policy making process of the Government to protect the People?

The recent overt approaches to new Legislations and Amendments of existing Laws provide more than the required evidence as to where beliefs and policies of the Government lie. The assumption still is that a spectrum of violence and lawlessness exists ranging from ‘intimidatory behaviour’ to ‘severe acts of interpersonal violence’ and ‘political terrorism’; armoured with this almost impenetrable shield more Statutes have been created, police powers have been extended, civil liberties eroded and an increasing range of activities have, as a direct consequence, been criminalised. What has been most dramatic is that so many fundamental changes in our Criminal Justice System have been achieved with minimal public debate or public opposition. By capitalizing on the ‘fear’ of crime, as Hough and Mayhew have relentlessly argued, the terrain has shifted and the ideology of endemic criminality has become internalized within communities by means of subservient mediatic means. The issues have thus comfortably shifted from the political- economic realities of the daily life of the average Mauritian with its relative social consequences to create the illusion that the marginalization of particular groups and or individuals is not only the solution but it is also inevitable and self-inflicted. Indeed, it can be argued that essential to such polity decisions has been the assumption of ‘voluntarism’ – those individuals choose to commit crime, take part in disorder and or ‘illegal’ manifestations. Crime is being, thus, portrayed as pathological and contagious with a potential of social contaminations and moral degeneracy. A ‘crime is a crime is a crime’, resonated in the near past the Iron Lady – regardless of the perpetrator, the content or the intent. Evidently the Government, arguably without any reservation, appears to appropriate the function to confront crime, preserve order, reaffirm traditional values and safeguard social security and the Nation’s moral identity. In fact, it has often been claimed that Government only legislates Laws to prohibit undesirable behaviours to occur. But there also lies the naked truth that it is Government that defines the frontiers of criminality by its very act of legislating Laws as a direct consequence of which certain forms of behaviour come to be labelled as ‘deviant’ and or ‘criminal’.

But Who defines Criminal behaviour – (a) The State, in its so-called fight against crime?

                                                                    (b) The Society, in its cry for Security?

The People must be compelled to ask why and how certain forms of behaviour come to be ‘labelled’ as ‘deviant’ or ‘criminal’, who does the labelling and what may be the effects of the very Process of Criminalisation?

Part One: The Process of Criminalisation Analysed

Socio-political gurus have long concurred that ‘criminalisation’ is the application of the criminal label to an identifiable social category. The concern here is not behaviour in the raw sense of physical actions accompanied by state of mind – as propounded in orthodox Criminal Law conceptualisations of ‘actus reus’ and ‘mens rea’. Rather, the concern is with the interpretation of human conduct. Indeed, the focus here is not primarily the behaviour of those who are found to have committed offences, and hence are criminalised, but rather the human practices which criminalise certain human conducts; accordingly, therefore, the very process of criminal law making in effect creates rather than reproduces categories of crime.

Thus, it is often argued it is the Government that plays the vital role in defining criminal behaviour. It seems appropriate to think of criminalisation as the concern of the State, acting in pursuit of ‘public interest’, to protect the rights and interests of all members of the community by upholding certain fundamentally important shared standards, and in some sense to protect society itself. For instance, decisions to criminalise or decriminalize behaviours by Legislation(s) do not only enable the Government to define criminal behaviour but they also enable the government to score political points. On the one hand, the notion of ‘crime’ can be used to construct law and order problems as political issues, whilst at the same time the Government can draw a prevailing discourse of crime as in some sense pre-political – that is as wickedness, mere lawlessness or even pathology – as something from which any ‘good citizen’ should and or would distance himself or herself. In this sense, formal ‘criminalisation’ can be exploited as an occasion for the evocation of an underlying symbolic consensus appeal to which may be a significant mode of Government self – legitimisation.

In such instances, (recent) Government’s legislative shifting of the boundaries of liability itself depends upon and expresses the contingency of crime, yet simultaneously may deploy a powerful social discourse which can construct ‘crime as given’. The purpose of Legislation(s) can thus be argued as to make criminal that which is not already criminal, yet its rationale is that behaviour is in another sense already criminal.

On the other hand, it has also been strongly suggested that even the very proposition that either the State, or indeed any other identifiable agency or process, is in control in defining the frontiers of criminality – is widely inaccurate and misleading. A number of separate problems can be identified and called for consideration. In the first place, even to the extent that it is legitimate to identify a special role for the State in the construction and management of the frontiers of criminality, the State itself is fragmented and its boundaries far from easy to identify. Central cases such as the enactment of Criminal Statues, the Formation of Judicial Precedents and the Pronouncement of Convictions in Criminal Cases, the exercise of Executive Powers in the Criminal Justice arena on the part of the Government Ministers, The Police, The Penal Authorities and so on can be pointed to.

Furthermore, a wide number of groups which are not clearly ‘State’ or even directly ‘State sponsored’ Agencies have an important influence on decisions about, and practices of, criminalisation. For example, Pressure Groups of various kinds affect the Legislative Process and Enforcement Practices, Lawyers play a part in preparing cases for Court and, particularly in advising clients whether to plead guilty or not and to what charge, victims of and witnesses to crime – play an important role in shaping officially recorded crime and above all the mass media effect Legislative, Judicial and Enforcement Processes may also have an enormous influence in construing, constructing and legitimating particular conceptions of real crime and consequently shaping moral panics about particular forms of behaviour. Even those who are subject to criminal regulations often shape the norms and practices which are applied to them through the strategies of creative compliance. Could it, therefore, be suggested that the process of criminalisation takes place amidst social groups itself?

A notable answer to this question has been the attempt of the Labelling Theorists to explain the process of criminalisation. Amongst others, Becker has suggested, “social groups create deviance by making rules whose infraction constitutes deviance, and by applying those rules to particular people and labelling them as outsiders. From this point of view, deviance is not only a quality of the act the person commits, but rather a consequence of the application by others of the rules and sanctions to an ‘offender’. The deviant is one to whom that label has successfully been applied; deviant behaviour that people so label.” Thus, resistance to conform with the norms and values of the mainstream of the Society, to follow the laid assumptions and to meet set social expectations, do not go unnoticed. The conformers identify and label the non-conformers and attitudes develop which often result in the behaviour of the latter drawn within the boundaries of criminalisation.

Durkheim even observed, “Crime brings together upright consciences and concentrates them. We have only to notice what happens, particularly in a small town, when some moral scandal has just been committed. They stop each other on the street. They visit each other. They seek to come together to talk of the event and to wax indignant in common. From all the similar impressions which are exchanged, for all the temper that gets itself expressed, there emerges a unique temper… which is everybody’s without being anybody’s in particular. This is the public temper.” Accordingly, Durkheim has viewed ‘criminalisation as an inevitable process which arises out of the weakness of culture in modern societies, he argued that the process of criminalisation is functionally useful as it coerces people with accepted social norms and values and therefore acts to preserve the moral boundaries of the community.

However, Young has asserted that ‘the Process of Criminalisation bears even greater implication’. He held, against the above suggestions, by characterizing Society as a simple diversity of values, have blinded themselves of the existence of a ‘very real’ consensus – the hegemonic domination of a set of values of a particular sector of the Society which is called the ‘powerful sector’. Thus, Young held by identifying a process of coercion without analysing its basis, the above theorists such as Becker and Durkheim ‘transformed the action’ of the powerful into an arbitrary flexing of moral muscles…thus identifying crime as a product of men passively pursuing ideas detached and free from material circumstances.

Instead, and in lieu, from Young’s perspective it can be argued that the very process of marginalization which takes place within the realm of the daily functioning of the Society, where ‘desirable behaviours are re-enforced and undesirable behaviours sanctioned’, implies the predominance of a complex set of social practices which both exercise and deploy a ‘range of kinds of powers’. These powers put into perspective in a polity such as Mauritius would be only the property type of power wielded by the State Institutions.

Thus, Critical Criminology seeks to bring to the fore structural relations – involving the Economy, the State Ideology and the Social Sector(s) which define and implement the State Ideology – and relating them to the processes by which ‘ideas’ gain popularity, which are then justified as consensus of the People and consequently gain Political Legitimacy. However, to fully appreciate these propositions in order to further understand how the Process of Criminalisation takes place, it is vital to identify what is ‘power’ and where it is concentrated in this ‘modern democratic’ polity of Our ‘beloved Country’.

Part two: The ‘Powerful’ and the Process of Criminalisation

In his writing, Foucault holds, “We should admit that power produces knowledge; that power and knowledge directly imply on one another; that there is no power relation without the correlative constitution of a field of knowledge, or any knowledge that does not presuppose and constitute at the same time power relations”. For Foucault ‘power’ is not uni-dimensional nor is it restricted to those formal relations of dominance in the economic or political sphere. In line with him, Sim remarks power is ‘dispersed through the body of Society’ and exercised through the processes of discipline, surveillance, individualization and normalization.

Foucault’s while starting with ‘knowledge-as-it-stands’, that which is ‘known’, a radical alternative must also contextualize knowledge – its derivation, consolidation and recognition – within dominant structural relations. The dynamics and visibility of power, however, are not always so obvious. For ‘power may be at its most alarming, and quite often at its most horrifying, when applied as a sanction of force’ but it is “typically at its most intense and durable when running through the repetition of institutionalized practices’. He further explains that structural contradictions of Capitalist Patriarchies require political management. While grassroots resistance has remained a persistent feature in present Social Democracies, their great achievement has been to contain opposition through relying on ‘consensus’ rather than ‘coercion’. Relations of domination and exploitation, both material and physical, have become redefined and broadly accepted as the justifiable pursuit of competing interests. The smooth and successful operation of power in this context is dependent on social arrangements, forms of political management and cultural traditions which together contribute towards hegemony.

Therefore, ‘Criminalisation’ can be argued to be dependent on how certain acts are labelled and on who has the power to successfully label certain acts as ‘criminal’ and who is directly limited to the political economy of marginalization. The power to criminalise may not necessarily be derived in consensus politics – but it carries with it the ideologies associated with marginalization and it is within these portrayals that certain behaviours and actions are named, contained and regulated. This is a powerful process because it mobilises Popular Approval and Legitimacy in support of powerful interests within the State.

Hillyard’s discussions illustrate clearly, ‘public support is more likely to be achieved for State intervention against ‘criminal’ acts than for the repression or suppression of a ‘political’ cause’; even where no purposeful political intention is involved, the ‘process of criminalisation’ can divert attention from the social or political dynamics of a movement and specify its criminal potential as a direct consequence of Laws, Regulations and or Codes of Conduct established by the powerful – accordingly, when a specific person or a specific group of people is portrayed ‘exclusively’ as ‘violating Law(s), established accepted norms and ultimately as labelled as ‘criminals’, there will be less tolerance of organized campaigns which emphasise that the specific person and or a specific group of people has legitimate political and economic grievances Or even the marginalization of People who campaign for rights or for peace and the questioning of their sexuality is a further example of the process by which meaningful and informed political action can be undermined, delegitimized and criminalized.

Furthermore, influences of this powerful sector is not only seen in the orthodox conceptions of crime, but also these views are broadly internalized and prioritised often by Criminal Justice Agencies, mainstream Politicians and, more importantly, the News and Media which incidentally affects the beliefs and perceptions of the Public. For instance, the news on National Television and Tabloids are viewed and read daily by thousands of people. This gives such mass-communication agent(s) and newspaper(s) a fundamental political role. The views expressed may or may not be shared by their viewers or readership – i.e., the general public – but they are invested with a special status by virtue of numbers. The arguments advanced in some ‘lieu’ may be somewhat more refined and the ideas loftier, but here again, it is the size of the viewers and readership, rather than the merits of the contents, that count most. In democratic societies, it is inevitable that politicians will be attracted to large audiences. Readers are simultaneously voters; what appeals to them will be of compelling interest to those who need to do the appealing at election time. Stephen Koss’ verdict on the political press during the twentieth century applies with equal force to its impact on the operation of the Criminal Justice System: “At its worst, the political press has mischievously fanned passions and fed prejudices. At its best it had focused ideas and indicated democratic values”.

Hence, these arguments, undeniably, point out that criminalisation is a process which may be successfully employed to underpin the repressive or control functions of the society where, arguably, power is concentrated and which bears considerable influences in their management of a Capitalist Patriarchy – Is Mauritius a Capitalist Patriarchy?

Thus, these powerful social institutions may legitimate each other’s notions of what is crime, and which crimes are most worthy of attention, in mutually reinforcing and self-fulfilling circles. Predictably, as argued by Young before, there are crimes of the poor and the working class including: public order offences, particularly where they erupt into public gathering, public protests, public expressions, strikes and or riots; routine property offences; crimes against the person, low level frauds – involving the passing of stolen goods, drug related offences and so on. This institutional focusing tends to reinforce, at any one-time, popular imagery which makes particular groups into scapegoat-targets, or what Cohen calls ‘folk devils” and these folk devils collectively, then, signify criminality.

Henceforth, the Process of Criminalisation, from this point of view, is not only the mere process of labelling which occurs between two agents in the course of social interactions – the process of criminalisation is far more significant. When questioned, the labeller is identified alongside the Powerful Sector of the Society and the labelled is not merely a victim of ‘circumstantial labelling’ – he or she is set off on a deliberate career of criminality, which may be covertly engineered and implemented by the labeller in order to submerge real legitimate political grievances.

Appreciating criminalisation from this stance, I move to the third part of the paper where I use these findings to critically examine the provisions made under the CJPOA to use Secure Training Orders and Secure Training Centres to fight Juvenile Crimes.

THE EPILOGUE; Effects and Consequences of The Process of Criminalisation, Issues to Retain to Predict and Explain Past, Present and future ‘Actions, Decisions and Inactions’: -

Legislations and or Acts of Parliament and the very Legislative Process to make these Laws in Our rather young democratic local Capitalistic Polity (let us call a spade a spade!) deal with a very wide and huge range of matters some of which are tougher conditions for bail, setting up and management of  prisons, abolitions and or amendments of  existing laws, bringing computer generated materials not within the ambit of existing offences but creating new ones, criminalising various forms of acts, decisions, trespasses and novel forms of nuisances which in recent times were perfectly legitimate and legal, providing the Police and other politically-nominated agencies with wider powers, eroding the existing powers of existing authorities  and tougher sentences for offenders (the list is NOT exhaustive). While some of the Legislative reforms are welcomed, such as those relating to sexual offences and the protection of Our Children from atrocious violations of their basic fundamental rights to be protected, there are other Legislations which may also attract the label ‘flawed’, ‘Violation of the Fundamental Constitutional Rights of the Person’, ‘repressive’, ‘disturbing’ or ‘ill-conceived’.

It is doubtful if an Act of Parliament reduces crime per se. Indeed, one of the major features of an Act of Parliament is more than often the criminalisation of a range of activities which, in turn, will increase the demands upon the Police in terms of man-power and resources and deflect them from the fight against those crimes which cause most harm and give rise to the greatest fear within the population. Confrontations between the Police and various groups, such as social activists, environmentalists, non-conformists, ardent civil liberty organisations, legitimate members of the society as well as frivolous groups of people or individuals is inevitable. The impression of a diminution of freedom is inescapable and the fear that this could lead to increased alienation, which could spill over into increased disorder on the streets or in the Country is all too real. Thus, it can be argued that, an Act of Parliament bears the potential of creating new social outcasts, the ‘great evils’ of the Society, Individuals and groups could be identified and labelled as those abusing and violating the very sacrosanct freedom bestowed upon one and all under yet another Act of Parliament – The Constitution. Indeed, a new range of ‘folk devils’ or ‘outsiders’ are often identified against whom the (New) Act of Parliament and or Amended Act(s) could be directed – thus imposing systematic legitimate force demanding coercion from people or groups of people who may dare to be non-conformist or ‘unrespectable’ – by primarily bringing them within the ambit of what is prohibited under the (New) Act(s) of Parliament and or Amended Act(s) of parliament and inevitably dragging the person or group of persons before our Criminal Justice System thereby successfully labelling the person or group of persons Criminal(s).

But, whatever the motives behind an Act of Parliament, what has almost always been apparent in the debates amidst the Members of the Parliament - who are “democratically” chosen from the People, by the People and who are sworn to act for the People – is that these groups of individuals or individuals simpliciter were identified as a threat to the Society and were to be the target for the (New) Legislative Provisions; for each new provision that is proposed, a ‘worst-case’ scenario is almost always used as the justification for its introduction – for instance fear of ‘terrorism’!!! and or clear comparisons with other existing incomparable laws by political nominees, who run short of the remotest figment of fibre constituting the very indication of what ever may stand for an ‘Independent’ view or even sensible view!!!. Most of the worst-case scenarios, however, could more than often be dealt with under existing Legislative Provisions, but worst-case scenarios more usually arouse fears and passions and are difficult things against which to argue and, as such prove an effective tactic in ensuring the passage of a Bill along the Legislative Process amidst the members of the Parliament bestowed with Supremacy at its very conception.

However, Critical Criminology, in the above discussion, discards the suggestions that the Process of Criminalisation is a mere circumstantial process, which occurs in everyday living. Instead, it is argued that the labelling of the criminal is not accidental – but a deliberate act of the ‘labeller’ who belongs to a specific sector of the Society where ‘power’ to manage the polity is concentrated. The Marxists would go even further to suggest that in effect the “Owners of the Forces of Production control the economy and hold the State at ransom while the State uses the Powers conferred upon it to make Laws to control the mass.”

Indeed, it can be argued that in its race to ‘Capitalism’ the Society needed a mobile and flexible workforce. The individual was taken away from both his or her extended family network and the close community web, into the nuclear family circle. Demands of this fierce Capitalist Economy did not cease even there. The nuclear family was attacked, with both parents compelled to work. The economy has thus initiated and tolerated the collapse of the family, leaving the State playing the ‘nanny’ with its tentacles penetrating each and every ‘nook and crannies’ of the Society while flexing its Legislative muscles to affirm its socio-economic control and making (New) Legislations which in turn define and redefine the frontiers of ‘Criminality’, ‘Crime’ and ‘Criminals’.   But the State is not a person, and it is from people – especially parents, that an individual learns the norms and values of the Society, which permeate collective living. As Berger wrote, ‘primary socialization is the process where a new member of the human society gathers the building blocks of individual identity, socially acceptable character pre-dispositions from the family circle.’ By dismantling the family walls, Our Capitalist Economy has robbed the individual of this ‘human birth right’ to learn. Thus, when the individual is unable to show socially acceptable behaviour and pre-disposed moral values and fails to conform with the continuous evolving social norms when  he or she is inevitably continuously forced to coerce with the parameters set by (New) Legislations of the ‘nanny’ State which consequently more than often initiate the process of criminalisation, he or she ends up before the Criminal Justice System with the result of being labelled from ‘criminal’. Instead of admitting to its own crime, this Capitalist Patriarchy may thus readily criminalise its victim. Instead of getting public sympathy – the victim gets public temper!

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