Prisoners lose bid to overturn sentences in landmark decision
PUTRAJAYA: In a 2-1 majority decision, the Federal Court dismissed review applications by three prisoners seeking to set aside their caning sentences, ruling that the punishment is constitutional.
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.
Mohd Helmi Anuar Mohd Kassim, 46; Kumanaan Anthony Vincent, 41; and J. Sivachandran, 38, had 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 death risk and linked the case to an inmate who died after being whipped.
In delivering the majority decision, Justice Wan Ahmad Farid said caning did not fall within the ambit of a “cruel, oppressive, and degrading” punishment in the constitutional sense, Bernama reported.
Justice Wan Ahmad Farid also said the caning sentence did not breach Article 5(1) of the Federal Constitution and did not warrant setting it aside.
He said it is for Parliament to decide on the moral or social merits of a punishment, and that the judiciary would overstep its role if it imposed its own views over legislative policy choices.
He also said the applicants did not provide any medical evidence to show that they were unfit to undergo caning or posed a risk of death if the sentence were carried out.
In dissent, Justice Lee held that the caning sentence is unconstitutional as it violates the right to life, dignity and equal protection of the law, and should be struck down.
He said the way caning is carried out can leave prisoners with lasting physical damage; some struggle to stand for long periods, while others end up wheelchair-bound and unable to work.
Justice Lee proposed that his ruling should apply prospectively, so any unexecuted caning sentences would not be carried out, and no new ones would be imposed under the law.
He clarified that his ruling would not extend to caning 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 were initially sentenced to death for drug trafficking, and Sivachandran for murder. Under the Revision of Sentence of Death and Imprisonment for Natural Life Act 2023, their sentences were reduced to 30 years’ imprisonment and caning.
Under the revised sentences, Mohd Helmi and Kumanaan were each given 24 strokes of the cane, while Sivachandran received 12 strokes.
In yesterday’s proceedings, the applicants were represented by lawyers N. Surendran, Latheefa Koya, Shahid Adli Kamaruddin, Mahajoth Singh, Zaid Abd Malek and Rajesh Nagarajan, while Deputy Public Prosecutors Mohd Fuad Abdul Aziz and Afzainizam Abdul Aziz appeared for the prosecution.
Lawyers MM Athimulan and Chan Yen Hui appeared for the Malaysian Bar as amicus curiae (friends of the court).
