As to create Sharia criminal offences, provided four

As a deeply conservative country, the justice
system in Malaysia is reflected by this principle. Malaysian legal system was
based on the common law legal system as the result of colonisation by the
British. The supreme law of the land the Constitution of Malaysia sets out the
legal framework and rights of Malaysian citizens. The constitution of Malaysia
also provides for a unique dual justice system. The dual system of law is
provided in Article 121(1A) of the Constitution of Malaysia. Article
3 also provides that Islamic law is a state law matter with the
exception for the Federal Territories of Malaysia.1

The Sharia law only applicable to Muslims and
deals with moral and family matters such as marriage, inheritance, and apostasy.
The two system coexist and operates separately in which the jurisdiction of one
cannot be challenge by the other one for example the decisions of sharia courts
cannot be appealed to civil courts and vice versa. Individual States has
jurisdiction to create Sharia criminal offences, provided four conditions are
met: it is an act against the precepts of Islam and it is not already a
criminal offence according to federal law. It can only apply to a person
professing the religion of Islam, and the punishment is limited according to
the 1965 Act, often referred to as the ‘3/5/6 formula’ (3 years jail, a fine of
5,000 Malaysian Ringgit (RM), 6 strikes with the rattan stick).2
However under Article 75 of the Federal Constitution, it provides for the
circumstances where if there is inconsistency between federal law and State
law, the former shall prevail over state law to the extent of the
inconsistency.

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Caning punishment under Sharia law

Under Islamic law canning is the nature of
Hudud law punishment. For example the punishment for unmarried couple who
commits adultery are 100 lashes while for false accusation of adultery (qazaf)
is 80 lashes. However, an accused under hudud law can only be convicted of a
sharia criminal offence and be sentenced to whipping or canning if the
prosecution are able to prove the two elements beyond reasonable doubt: That
the accused has committed criminal offence. The Prophet SAW once said that the
punishment of hudud is lifted in matters of doubt. Secondly, the accused has
deliberately and intentionally committed the offence. As illustrated in Al
Ahzab, verse which reads “but, there is no blame on you if ye make a mistake
therein (what counts is) the intention of your hearts. And God is Oft
returning, most Merciful. Another Hadeeth to support this where Prophet SAW
said “there is no obligation on my ummah in matters of mistake, forgetfulness
and everything which is forced on him”.

Both Quran and the Sunnah provides for the
canning and whipping punishment for adultery offence. In al Isra’, verse 32
adultery offence is considered as heinous and immoral. Therefore it is
justifiable that heavy punishment such as stoning and whipping are warranted
for such offence. Stoning punishment is meted out to accused who is married at
the time of commission. Whereas for the unmarried accused are punishable by
whipping. The authority for such whipping punishment is prescribed in an Nur,
verse 2. Additionally, a saying by Prophet SAW “an unmarried adulterer with an
unmarried adulteress, both will be punished with a hundred whippings and a year
in banishment. A married adulterer with married adulteress, both will be
punished with hundred whipping and stoning”.

 

Though caning punishment is originally of
hudud in nature, the ulama’ is of the opinion that it could also be a
punishment in ta’azir offences. The only distinction is that the number of
canning would be much lesser in ta’azir compared to the severity under Hudud
offences. To illustrate this differences, one of hadith by Sahih Muslim that
the Prophet SAW once said that “whipping punishment in ta’azir case is not
supposed to exceed more than 10 strokes, except in hudud cases which is under
the rights of Allah. Another hadith to support this where Prophet SAW said
“those who raised the punishment of non-hudud offences to such degree that it
reaches the degree of hudud punishment, are indeed transgressors” by Sahih
Bayhaqi.

Most Syariah Criminal procedure Enactments in
Malaysia contains the provision for the execution of caning or whipping.  In order to examine the punishment for caning
in Malaysia, the legal provision on whipping under Syariah Criminal Procedure
(Federal Territories) Act 1997 must be examined. Section 125 (2) provides
specification for the actual whip to be used for caning. The requirement is
that it must be made of skin or rattan, smooth and even. The specific
measurement must be not >1.22 m in length and not >1.25 in diameter. The
rationale behind this guidelines is that to ensure that the objectives of
punishment, reform and deterrent are achieved without causing unnecessary
injury to the convict. Additionally, section 125 (3) provides for
additional guidelines to be followed in enforcement of caning punishment. The
said guidelines includes the procedure before the sentence is being carried
out. It stated that before the caning is carried out, the convict must be
medically examined by a certified medical officer (section 125(3)(a)). This
is to ensure that the convict is in good health to undergo such punishment.

In order to safeguard the wellbeing of the
convict, several guidelines are provided by the Shafie and Hambali school of
thought: Firstly, medical officer must be present to ensure that the caning
does not cause death to the convict. Secondly, for the convict which are too
old or weak, the punishment is to be carried out in the manner and in intervals
so as to avoid death. Lastly, in the circumstances where the convict is sick,
the execution of punishment is to be postponed until he is certified healthy to
undergo such punishment.

Regarding the convict which within pregnancy
period, the whipping should only be delayed to a date which should be of two
months after the delivery or abortion as provided in section 125(3)(b).

The statute also specified the venue in which
the punishment should be carried out. It must be at public premise ascertained
by the ruling government as provided in section 125(3)(c). This rules
derived from the consensus of the four Islamic schools of thought namely Shafie,
Maliki, Hambali and Hanafi in which they agreed that such punishment to be
carried out in public. This is to be referred to An Nur, verse 2 in which it
translated to let the punishment (of whipping) be witnessed by a group of those
who have faith.

Section 125(3)(d) provides the condition for
the executor who to performing the caning must be of just and matured in
nature. This means that not just anybody can carried out such heavy
responsibilities.

Regarding the issue on the execution of the
whipping, section 125(3)(e) provided that the execution must be done in
moderate in nature. The executor have to make sure that with every stroke his
hand not to be raise higher than his head. Also, he must ensure that the every
given stroke does not cause the skin of the convict to bleed or blistered. By
virtue of section 125(3)(f), in order to avoid unnecessary injury to the skin of
the convict, the executor is not allowed to make any pulling motion for every
stroke on the body. To avoid unnecessary injury to any particular part, section
125(3)(g) stated that the caning must be given evenly to the whole
body. However there are certain body part which is prohibited to be hit such as
the head, face, stomach, chest and private parts.

Under section 125(3)(h), the convict
should be allowed to wear clothes which cover his aurah which is also an
adherence to sharia principle. Section 125(3)(i) mentioned on the
position that on male convict should be done in standing position while female
convict must be in seated position. Lastly on the condition of caning, section
125(3)(j) provides that at any stage of the punishment, should the
certified medical officer certifies that the convict is medically unfit or
unable endured the whipping punishment, such punishment shall be postponed
until he can be certified fit.

Under section 123(4) of the Act, in cases
where the punishment only by whipping, he must be detained as if he was
undergoing jail sentence. The said convict will be detained until all the
whipping sentenced has been executed. If the convict was certified unable to
undergo the whipping punishment as the reason of old age, sickness or other
valid reason by the certified medical officer, the case would be referred to
the sentencing court. This is provided under section 125(5) and the
court will then issue a special order which it deems fit based on the
circumstances.

1 “Malaysia
Toward an Islamic State” Archived 8 January 2018 at the Wayback Machine.,
Islamic World. Accessed 8 January 2018.

2 www.icrjournal.org/icr/index.php/icr/article/download/206/199/
Accessed 8 January 2018.