If you grew up in a typical Malaysian household, there’s a high likelihood that the ultimate punishment you can receive for misbehaving is the rotan. Caning seems to be the punishment of choice – be it in the home, schools, or even prisons.
But unlike the red welts you’d receive from being caned by a parent or teacher, a caning sentence by law (also known as whipping) can be a lot more……..severe. If you’re not squeamish, there’s a whipping video that you can watch here.
Also unlike being caned by your parents, caning in the judicial sense is a lot more regimented in the sense that it’s only available for certain crimes (with a set number of strokes), and a person would have to be tried and found guilty in the court of law before the caning can be carried out.
When discussing caning in the legal sense, it’s important to note that the punishment is different in when carried out under Islamic law and when it is not. We’ll go through the differences in greater detail over this article but, suffice to say, the whipping punishment is different in the case of the two Muslim women sentenced to six strokes of whipping for musahaqah (sexual acts between women) and a man who was sentenced to two whipping strokes for sexually abusing a baby. The first is in accordance with Syariah criminal law, while the second is under non-Islamic criminal law.
For the purposes of this article, we will refer to Syariah criminal law as the Syariah law and non-Islamic criminal law as the criminal law.
So let’s start with the basics, which is…
The laws that apply to caning
We won’t be going into the specifics of which crimes are punishable with caning, but rather to provide a general understanding of how criminal law and Syariah laws apply. Similarly, we won’t go into much detail on why there are separate laws but as a brief mention, this has something to do with the Federal Constitution (the highest law in our country).
Under criminal law, we have two important laws to look at with regards to whipping. The first is the Penal Code which is the law that describes the types of offences in our country and their corresponding punishments.
The second is the Criminal Procedure Code which regulates how criminal trials are supposed to be conducted, how punishments are to carried out, and basically it has something to do with the procedural aspects of criminal law.
In essence, these laws are equally applied throughout the country and take precedence over other laws (State or Syariah) unless otherwise stated. For example, if you committed a murder in Johor and ran to Ipoh, you can be arrested and brought to court in Ipoh; where you’ll be charged under the same law and face the same punishment as you would in Johor.
In contrast, Syariah laws apply only to Muslims and these laws are enacted and enforced by each individual State via the State Legislative Assembly (Dewan Undangan Negeri) using the Syariah Criminal Offences (Federal Territories) Act 1997 as a base model.
What this means is that each State has their own Act to regulate Syariah criminal offences within their State and these Acts are based on the Federal Territories Act. For example, Selangor has the Syariah Criminal Procedure (State of Selangor) Enactment 2003 while Perlis has Syariah Criminal Procedure (Perlis) Enactment 2006, and so on.
Each State’s Act on Syariah criminal offences is regarded as the Syariah “Penal Code” as they list down the numerous offences and corresponding punishments derived from Syariah.
Now that you know the first difference, the laws that apply, let’s move on to difference number two which is…
You are whipped differently
We’ve covered the kinds of punishments you can receive under the law for committing a crime in a separate article (read more here) but as a quick summary, there are 6 different kinds of punishments that can be given out to people convicted of crimes:
- Death sentence
- Police supervision
- Fines and compensation
- Good behaviour bonds
Now that you know this, let’s zoom into whipping under criminal law and under Syariah law
How whipping is carried out is in accordance with the Criminal Procedure Code through procedures laid down in sections 288-290. The main points are as follows:
- The maximum number of strokes is 24 (10 if you’re between 18-21 years old)
- The diametre of the rattan shall not exceed 1.27cm
- No whipping is to be carried out on women, males sentenced to death, or any male over 50 years old (unless he has committed a sexual offence)
- The Medical Officer must certify that the offender is fit to whip
Section 289 reads:
“No sentence of whipping shall be executed by instalments, and none of the following persons shall be punishable with whipping: (a) females; (b) males sentenced to death; (c) males whom the Court considers to be more than fifty years of age, except males sentenced to whipping under section 376, 377c, 377ca or 377e of the Penal Code.”
Section 125 of the Syariah Criminal Offences (Federal Territories) Act 1997 is the main provision to refer to because as you remember, other States use this Act as a base model. The main points are as follows:
- Both males and females can be whipped (but whipping for pregnant women is postponed)
- The diametre of the rattan shall not exceed 1.25cm
- The Medical Officer must certify that the offender is fit to whip
- The person executing the sentence must be an adil and mature person
- The whipping rod is to be used with average force without cutting the offender’s skin
- Whipping can be done on all parts of the body except the face, head, stomach, chest, or private parts
As you can see, there are several differences between whipping under criminal law and whipping under Syariah law. The first is that women can be whipped under Syariah law but not under criminal law. The second is that whipping under Syariah law has to be carried by an “adil and mature person” while there is no such requirement under criminal law.
Aside from that, whipping done under the criminal law is inflicted on the buttocks and is known to cut and scar an offender for life while whipping under Syariah law does not cut the skin and can be done on other parts of the body other than the buttocks.
With all these differences, there is one key similarity in that…
Both forms of whipping can be done in public if the court allows it
Under section 268 of the CPC and section 123B of the Syariah Criminal Procedure (Sabah) Enactment 1993, the law allows for the court to direct where the whipping is to take place once an offender has been punished.
This means that the law allows for offenders sentenced under criminal law and Syariah law to be whipped in public if the court directs for the whipping to be carried out that way. However, it is rare for criminals to be whipped in public as the whipping is often times a severe and bloody affair.
On the other hand, we have seen offenders sentenced under Syariah law being whipped in public because Syariah law dictates that the whipping is not to cut the offender’s skin. Besides that, as explained by the Perak Mufti in the recent caning of two women in Terengganu, the purpose of caning under Syariah is to teach and deter others from such actions.
However an important point to note is that only Sabah has the provision that allows the court to dictate the place for the whipping to be carried out. The same provisions cannot be found in the Syariah Criminal Procedure (State Of Penang) Enactment 1996 and Section 126 of Syariah Criminal Procedure (State Of Selangor) Enactment 2003.
At the end of the day, it can be said that whipping under Syariah law and criminal law are pretty different and understanding these differences can help shape public perception when these sentences are meted out.