AUG 27 – I agree with Dina Zaman (“Kartika’s legacy to Malaysia”)
that there is a marked difference between caning under Syariah law and
our Civil law.
I also agree with the statement attributed to Azhar Harun (aka the
columnist-blogger Art Harun) that under “civil law, women cannot be
subjected caning as a punishment for any offence.” Section 289 of the
Criminal Procedure Code (CPC) expressly provides that no female shall
be punishable with whipping.
However, I beg to differ that there is no procedural guideline as to
how caning is to be carried out under Syariah law. On the contrary law,
Syariah law in Malaysia makes provision for the carrying out of the
sentence of whipping.
The law is to be found in the state enactments on Syariah Criminal Procedure.
I shall refer to section 125 of the Syariah Criminal Procedure
(Federal Territories) Act 1997. Similar provisions are to be found in
the state enactments.
Subsection 2 provides that the whipping rod, excluding its holder,
shall be of the same type and made either from rattan or small branch
of a tree without segment or joint and its length not more than 1.22
metres and its thickness not more than 1.25 centimetres.
On the carrying out of the sentence, subsection 3 makes it mandatory that:
(a) before execution of the sentence, the offender shall be examined
by a Government Medical Officer to certify that the offender is in a
fit state of health to undergo the sentence;
(b) if the offender is pregnant, the execution shall be postponed
until the end of two months after delivery or miscarriage, as the case
may be;
(c) the sentence shall be executed before a Government Medical
Officer in such place as the Court may direct or in a place fixed by
the Government for the purpose;
(d) the person appointed to execute the sentence shall be an “adil” and mature person;
(e) the person shall use the whipping rod with average force without
lifting his hand over his head so that the offender’s skin is not cut;
(f) after inflicting a stroke, he shall lift the rod upward and not pull it;
(g) whipping may be inflicted on all parts of the body except the face, head, stomach, chest or private parts;
(h) the offender shall wear clothes according to Hukum Syarak;
(i) if the offender is a male, the whipping shall be inflicted in a standing position, and if a female, a sitting position;
(j) during the execution of the whipping the Government Medical
Officer certifies that the offender can no longer receive the strokes,
the whipping shell be postponed until the Medical Officer certifies
that the offender is fit to undergo the balance of the sentence.
So, it is erroneous to say that “when Kartika was sentenced to be caned, she had to be caned in accordance with our civil law.”
On another issue of controversy, that is, the so-called remand order
for a week in prison to facilitate the caning, I refer to subsection 4
of the same provision.
It provides that in the case where the offender is sentenced to
whipping only, then he shall be dealt with as if he is sentenced to
imprisonment until the sentence is executed.
It appears therefore that the warrant to detain Kartika, which the
state Syariah prosecutors have clarified to be the nature of the order,
is lawful.
Be that as it may, the legality of the whipping sentence on Kartika
perhaps lies in its inconsistency with section 289 of the CPC. This
provision is not only “civil’ law but a federal law.
On the other hand, the law under which Kartika was convicted and sentenced is state law.
Article 75 of the Federal Constitution provides that if any state
law is inconsistent with a federal law, the federal law shall prevail
and the state law shall, to the extent of the inconsistency, be void.
It is arguable, therefore, that a sentence passed under a state law cannot be inconsistent with provisions of a federal law.
* Mohamad Hafiz Hassan is a reader of The Malaysian Insider.
