A number of syariah enactments also provide for caning but in ways that are much less painful than the caning under civil law. In addition, caning exists for serious disciplinary offences by students of secondary schools.
Common categories of penal offences subject to caning include violent crimes like rape, gang rape, incest, kidnapping, armed robbery and assault with intent to outrage modesty; drug offences of trafficking and possession; serious immigration offences like undocumented migration and forged passports; and economic and other crimes like bribery, criminal breach of trust and illegal moneylending.
Recently, in the case of Mohd Helmi Anuar Mohd Kassim v Pendakwa Raya and Two Others (April 2026), the law on whipping was challenged as unconstitutional on a number of interesting grounds. Though the challenge failed, the majority decision by Chief Justice Tun Wan Ahmad Farid Wan Salleh and Datuk Azizah Nawawi and the dissenting judgment by Datuk Lee Swee Seng are rich with scintillating principles of a rights-based constitutional order.
The brief facts of the case are that the three applicants had been convicted and sentenced to death for various offences.
Luckily for them, a new law – the Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Act 2023 permitted the Federal Court to revise these severe sentences. Such a revision was accomplished, and in lieu of death, all three applicants were given 30 years’ imprisonment and 12 strokes of whipping for each of the charges. However, the story did not end there.
In an unrelated case, a prisoner at the Pokok Sena prison, Kedah, passed away nine days after being whipped pursuant to a sentence imposed on him.
The lawyers for the three applicants used the Pokok Sena death as the basis for a strong challenge to the whipping sentence on their clients on innumerable grounds, among them the following:
Risk of death: The punishment of whipping carries the risk of death and may result in deprivation of life without sanction of law. Such a consequence would be contrary to Article 5(1) that no one should be deprived of his life or personal liberty save in accordance with law.
In rejecting this submission, the learned CJ held that there was no medical evidence of a causal link between the whipping and the Pokok Sena death. A single incidental risk of mortality is insufficient to prove unconstitutionality. The court noted that there are Standard Operating Procedures and the inmate had been certified fit and healthy following a rigorous examination by medical officers. The prisoner also received post-punishment medical monitoring. Other factors may have contributed to the death. The court also noted that in the case of the parties before the court, no evidence was available that the three applicants were unfit for corporal punishment.
Cruelty and inhumanity: The applicants argued that whipping is cruel, inhuman and degrading. It is a form of torture and a violation of Articles 5(1) and 8(1) of the Constitution, which embody the test of proportionality. The CJ held that nearly all sanctions within our criminal justice system carry a profound and devastating impact – whether psychological, emotional, physical or financial. The potential for an adverse outcome does not in itself strip a penalty of its legitimacy.
In any case, the determination of what is “oppressive cruel and degrading” is inherently a matter of subjective moral judgment and public policy. Such determinations are, by their nature, better suited for the elected legislature than the judiciary.
Proportionality: The lawyers for the applicants submitted that Article 8 houses within it the doctrine of proportionality, which is the test to be used when determining whether any form of state action is arbitrary or excessive when fundamental rights are alleged to have been infringed. The CJ pointed out that the test of proportionality was not violated because Section 290 of the Criminal Procedure Code (CPC) requires the presence of a medical officer to certify that the offender is in a fit state of health to undergo the whipping, and whipping shall be stopped if the medical officer certifies that the offender is not in a fit state of health to undergo the remainder of the sentence.
The CJ also ruled that under the law, there are situations when whipping is prohibited. Under the CPC, the following cannot be sentenced to whipping: females, males sentenced to death and males over 50 years of age.
Gender inequality: The question of gender inequality was raised by the advocates. In a learned discourse on Article 8, the CJ pointed out that though Article 8 forbids discrimination, rational classification or differentiation is permitted so that like are treated alike.
International law: The CJ relied on precedents to rule that international treaty obligations do not form part of our domestic law until they are incorporated by Parliament in our legislation. In short, while the applicants lost their case, the lofty principles of law they raised were mostly accepted by the courts. It was just that the learned judges did not see the relevance of the lofty principles to the facts of the case. Despite this, there is much in this judgment that supports a liberal human rights approach to constitutional jurisprudence.
On procedural issues, the CJ ruled generously that under rule 137 of the Rules of the Federal Court, a challenge on the constitutionality of an impugned earlier decision can still be made on a ground not previously ventilated if it can be shown that the fact necessary to support the challenge was not available when the earlier decision was made.
On the judicial role in constitutional litigation, the CJ walked the middle path of moderation between judicial activism and strict construction of the literal words of the Constitution. He ruled that in interpreting human rights, the duty of the court is to adopt a prismatic (and not a literal) approach. He ruled that if the right to life under Article 5(1) is challenged, Article 8(1) on the right to equality will at once be invoked such that the action must meet the test of proportionality.
The CJ’s ruling that Article 5 houses the ideal of the rule of law and that Article 8 contains within it the concept of reasonableness and proportionality will do much to promote a principled, rights-based constitutional jurisprudence consistent with evolving human rights norms in Malaysia and abroad.
However, in the end, the CJ found that the punishment of whipping in the Dangerous Drugs Act and the Penal Code meets the test of proportionality under Article 5 and the test of rational classification under Article 8.
The legal community will be divided on these issues. Some will argue that whipping amounts to torture. Others will point out that if international law allows the death penalty in some circumstances, as it does, it is impossible to argue that whipping should be forbidden by the law.
Victims of violent offences will have their own views that retribution through whipping is justified.
Whatever one’s view may be, what needs to be noted is that there is much in this judgment that encourages a prismatic, holistic, non-literal, morally-charged view of constitutional law.
Emeritus Professor Datuk Dr Shad Saleem Faruqi is former holder of the Tunku Abdul Rahman Chair at Universiti Malaya. The views expressed here are his own.
Already a subscriber? Log in
Get 20% OFF The Star Digital Access
Cancel anytime. Ad-free. Unlimited access with perks.
