Public caning for T'ganu man violates federal law: Suhakam

Summary

• Suhakam says the public caning sentence imposed on a Terengganu man exceeds syariah court’s jurisdiction allowed by federal law.

• Commission says Syariah Courts (Criminal Jurisdiction) Act 1965 only mentions caning, not public caning.

• It also says punishment inconsistent with human rights and dehumanises individuals.

Suhakam said the public caning sentence imposed on a home builder for committing khalwat in Terengganu exceeds the jurisdiction allowed by federal law, particularly the Syariah Courts (Criminal Jurisdiction) Act 1965 (Act 355).

The sentence also oversteps state powers as listed in the Federal Constitution, the commission said.

“The said law only permits caning, not public caning.

“Section 125(3)(c) of the Terengganu Syariah Criminal Procedure Enactment 2001, which permits the Syariah Court to direct the place of whipping to be before the public, is not envisaged by Act 355.

“Hence, the commission is of the view that directing whipping before the public renders the punishment in excess of or ultra vires to Act 355, as well as to be in violation of the jurisdictional limitation imposed by Item 1 of the State List of the Federal Constitution,” it said in a statement today.

On Nov 20, Terengganu Syariah High Court judge Kamalruazmi Ismail ordered Mohd Affendi Awang - who pleaded guilty to committing khalwat for the third time - to be caned six times in public.

The widower became the first offender to be publicly caned for a syariah criminal offence in Terengganu.

On Dec 15, The Terengganu Syariah Court of Appeal upheld the sentence after its execution was temporarily suspended pending an appeal.

The caning is now set on Dec 27, at Masjid Al Muktafi BIllah Shah in Ladang, Kuala Terengganu.

Affront to human rights

On that note, Suhakam said public caning is an affront to human dignity and violates a basic principle enshrined in both international law and the Federal Constitution of Malaysia.

It pointed out that Article 5 of the Federal Constitution guarantees the right to life and personal liberty, which the courts have affirmed includes the right to live with dignity (Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan [1996] 1 MLJ 261).

“The public execution of such a punishment exacerbates its degrading nature, subjecting the individual to humiliation, anguish, and shame.

“Such practice is not only inconsistent with human rights standards but it also dehumanises the individual and perpetuates a cycle of stigma, rather than focusing on rehabilitation,” it mentioned.

Suhakam reiterated its stand in advocating for the abolishment of corporal punishments - regardless of whether imposed by judicial or educational authorities.

“Punishments that inflict physical violence and public humiliation have no place in a modern justice system.

“They undermine Malaysia’s commitments to human rights, tarnish its legal integrity and erode the dignity of individuals - a value upheld by all religions, including Islam,” it said.

Suhakam added: “It is high time that Malaysia becomes a party to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), as many other Muslim-majority countries have already ratified or acceded to this convention.”

“We must endeavour to abolish practices that violate human dignity and to focus instead on rehabilitative justice.”

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