A couple leaving the Syariah High Court in Kuala Terengganu after they were publicly caned for attempting to have lesbian sex. (PIC BY GHAZALI KORI)

SYARIAH is not new in the Malaysian justice system. The recent decision by the Terengganu Syariah High Court to whip two women who pleaded guilty to attempting to have lesbian sex has raised some criticism within and outside Malaysia. The sentence was carried out in accordance with the Syariah Criminal Procedure (Terengganu) Enactment 2001.

Politicians and Muslim and non-Muslim activists expressed diverse opinions on the sentence. Some say the execution of the sentence does not show a true image of justice in Islam. Some say corporal or physical punishments are harsh and barbaric, and have harmful and long-lasting physical and psychological effects.

Some countries, like India and the United Kingdom, have abolished whipping, pursuant to the Indian Abolition of Whipping Act 1955 and the Criminal Justice Act 1948, respectively.

In Malaysia, whipping is prescribed in the Criminal Procedure Code. It was first introduced in Malaya by the British in the 19th century, and formally codified under the Straits Settlements Penal Code Ordinance IV in 1871.

Whipping under the civil legal system is administered pursuant to the Criminal Procedure Code, which lays down the procedures. This punishment is carried out on male offenders for committing serious offences, such as rape, incest, violence, theft, robbery, kidnapping, extortion and trafficking in firearms and drugs. It is also prescribed for lesser offences, such as illegal immigration, bribery and criminal breach of trust.

The offender cannot be sentenced to more than 24 strokes of the cane in a single trial.

In the case of a juvenile offender, the maximum number of strokes is 10.

Whipping is carried out on naked buttocks of offenders by specially trained officers. A cane about 1.09m long and 1.25cm thick is used for serious offences and violent crimes, such as drug trafficking, causing grievous hurt, armed robbery and rape. A thinner cane is used for white-collar crimes, such as bribery and criminal breach of trust.

A medical officer is required to be present to certify that the offender is fit for punishment.

Women, men above age 50, except those convicted of rape and unnatural offences, and men sentenced to death shall not be subjected to whipping. Boys aged between 10 and 18 may be sentenced to a maximum of 10 strokes with a light rotan.

Undoubtedly, whipping under the civil legal system can leave permanent physical and psychological scars.

But public interest demands that law and order be maintained at all times and deterrent sentences ought to be imposed on serious offences.

The punishment in criminal cases is punitive and reformative. The purpose is to make offenders repent for the action, deter him from repeating such acts and deter others who might be tempted to commit a crime.

In comparison, whipping under syariah is sanctioned by the Quran, where the punishment for slandering a chaste woman is prescribed in Surah An-Nur (24), verses 4 and 5, to scourge them with eighty stripes. The syariah court in Malaysia, however, can only impose whipping up to six strokes, as provided for in the Syariah Courts (Criminal Jurisdiction) Act 1965.

Undeniably, whipping under the syariah legal system is much less severe than that under the civil legal system.

Muslim scholars are unanimous that whipping should be done with average intensity and should not be inflicted on the naked body nor on the head, face and private parts. Further, whipping should not leave any wound and should be distributed evenly over various parts of the body.

The above guidelines on whipping are contained in the Syariah Criminal Procedure of the respective states. Section 125 of the Syariah Criminal Procedure (Federal Territories) Act 1997 provides that the whipping rod, excluding the handle, shall be of the same type and made either from rotan or a small branch of a tree without segments or joints, and its length no more than 1.22m and its thickness no more than 1.25cm.

The person executing the whipping must be an adil (fair and just) and mature person. The whipping shall be inflicted in a standing position for a man and in a sitting position for a woman. Male offenders must wear clothes that cover the region between the navel and the knee, while female offenders must wear clothes that cover their entire body, save for the face and palms.

The whipping rod must be used with average force without lifting the hand over the head so that the offender’s skin is not cut. After inflicting a stroke, he shall lift the rod upward and not pull it. The whipping may be inflicted on all parts of the body, except the face, head, stomach, chest or private parts. If the offender is pregnant, the execution shall be postponed until the end of two months after delivery, or after a miscarriage, if that is the case.

From the above, it is to be noted that whipping under the syariah legal system is similar to whipping of a child offender under Section 92 of the Child Act 2001, which is that the person executing the whipping must use a light cane with average force without lifting his hand over his head so that the child’s skin is not cut. After one stroke, he must lift the cane upward and not pull it. The whipping may be inflicted on any part of the body, except the face, head, stomach, chest or private parts. The child must be fully clothed.

It is important for people to know the rationale behind whipping as a punishment under the syariah system and the manner in which it is carried out before jumping to conclusions.

PROFESSOR DR ASHGAR ALI ALI MOHAMED, PhD, Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia

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