COMMENT | The information used in this article is sourced from online news reports. We argue that both the Islamic offence of musahaqah and the punishment of public caning are unconstitutional. It must be stated at the forefront that this article does not aim to promote homosexuality or any other acts deemed immoral.

The “rule of law” is now everyone’s favourite phrase. So, everyone would agree that criminal law and the overall administration of justice must abide by it.

The facts

The story supposedly began when Islamic enforcement officers were conducting their routine “patrols” and caught the two women attempting to engage in sexual activity in a car. These women, respectively aged 32 and 22, pleaded guilty to attempted musahaqah before the Terengganu Syariah High Court.

They were convicted and sentenced to six lashes each and fined RM3,300 or four months’ imprisonment in default. The caning was carried out on Sept 3 by the authorities in the presence of the public comprising various sectors of society.

It is said that at least 100 people witnessed it.

Musahaqah is an offence under section 30 of the Syariah Criminal Offences Enactment (Takzir) (Terengganu) Enactment 2001 (“the Enactment”) and is punishable with “fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to whipping not exceeding six strokes or to any combination thereof”.

The punishment for attempted musahaqah is the same as the offence itself (see: section 59 of the Enactment). Section 2 of the Enactment defines musahaqah as “sexual relations between female persons”. It is submitted that these provisions of the law and the punishments imposed on the two women are unconstitutional....