PUTRAJAYA: The Federal Court has dismissed review applications by three prisoners seeking to set aside their whipping sentences, ruling that the punishment is constitutional.
In a 2-1 majority decision on Wednesday (April 22), Chief Justice Wan Ahmad Farid Wan Salleh and Chief Judge of Sabah and Sarawak Azizah Nawawi formed the majority, while Federal Court judge Lee Swee Seng delivered the dissenting judgment.
The applicants, Mohd Helmi Anuar Mohd Kassim, 46; Kumanaan Anthony Vincent, 41; and J. Sivachandran, 38, contended that caning violated their constitutional rights to life and equality before the law as guaranteed under Articles 5(1) and 8(1) of the Federal Constitution. They cited the risk of death, referring to a case of an inmate who died after being whipped.
In delivering the majority decision, Justice Wan Ahmad said whipping did not fall within the ambit of a "cruel, oppressive and degrading" punishment in the constitutional sense.
He said the punishment of whipping is not intended to cause death in the same way as the death penalty, which deprives a person of the right to life.
Justice Wan Ahmad further said the whipping sentence did not breach Article 5(1) of the Federal Constitution so as to warrant it being set aside.
He said it is ultimately for Parliament to decide on the moral efficacy or social desirability of a specific punishment, adding that the judiciary would be overstepping its constitutional bounds if it substituted its own subjective moral preferences for the deliberate policy choices of the legislative branch.
"It is not the function of the court to act as a moral arbiter or a 'super-legislature' in the guise of constitutional interpretation," he said.
He said the applicants did not provide any medical evidence to show that they were unfit to undergo caning or that it would pose a risk of death if the sentence was carried out.
In dissent, Justice Lee held that the whipping sentence is unconstitutional as it violates the right to life, dignity and equal protection of the law and should therefore be struck down.
He said the manner in which whipping is carried out under the Criminal Procedure Code and the Prison Regulations 2000 may result in some prisoners experiencing long-term physical limitations, including difficulty standing for extended periods, particularly in manual jobs, while others may become wheelchair-bound and unable to continue working to support their families.
Justice Lee proposed that his declaration of unconstitutionality should apply prospectively, meaning that sentences of whipping not yet carried out should not be executed and no further such sentences should be imposed under relevant legal provisions.
He clarified that his ruling would not extend to whipping under Syariah law, school disciplinary caning or reasonable parental chastisement at home, as those matters did not arise in the review applications.
Mohd Helmi and Kumanaan had been sentenced to death for drug trafficking, while Sivachandran faced the death penalty for murder. Under the Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Act 2023, their sentences were commuted to 30 years' imprisonment, along with caning.
Under the revised sentences, Mohd Helmi and Kumanaan were each given 24 strokes of the cane, while Sivachandran received 12 strokes. – Bernama
