THE recent decision of the Syariah High Court of Terengganu to whip two females has raised criticisms within and outside Malaysia. The sentence was carried out in accordance with the Syariah Criminal Procedure (Terengganu) Enactment 2001. While this sentence and its execution is not the first of its kind in the country, diverse opinions were expressed by politicians as well as by Muslim and non-Muslim activists.
Some contended that the execution of the sentence has not portrayed the sympathetic image of justice in Islam while others argued that all kinds of corporal punishment are harsh and barbaric and have long-lasting physical and/or psychological effects.
In fact, whipping as a form of punishment has been abolished in many countries, including those in the European Union, Britain, India and New Zealand, as it is deemed to be cruel and inhumane.
In Malaysia, whipping is provided in the Criminal Procedure Code. It was first introduced to Malaya by the British in the 19th century and formally codified under the Straits Settlements Penal Code Ordinance in 1871. The sentence of civil whipping is administered pursuant to the Criminal Procedure Code.
This punishment is inflicted on male offenders for committing serious offences such as rape, incest, violence, theft, robbery, kidnapping, extortion, trafficking in firearms and drug trafficking. It is also inflicted for lesser offences such as illegal immigration, bribery and criminal breach of trust.
Women, men above the age of 50 except those convicted of rape and unnatural offences, and men sentenced to death are exempted from whipping.
Boys aged between 10 and 18 may be sentenced to a maximum of 10 strokes with a light rattan cane.
It is undeniable that civil whipping is severe and will leave permanent physical scars. The whipping is inflicted on the naked buttocks of the offender by specially trained officers.
A thicker cane is used for those convicted of serious offences and violent crimes such as drug trafficking, causing grievous hurt, armed robbery and rape. A thinner cane is used on those convicted of white collar crimes such as bribery and criminal breach of trust.
This is considered necessary as public interest demands that law and order must be maintained at all times and a deterrent sentence ought to be passed for the commission of serious offences.
Syariah whipping is sanctioned by the Quran and Sunnah in such cases as slandering a chaste woman, fornication and consuming liquor.
Syariah whipping, however, is less severe than civil whipping, and is carried out with average intensity on a clothed body, avoiding the head, face and private parts. The whipping should not cause any wound and should be distributed evenly on the authorised parts of the body.
The Syariah Criminal Procedure (Federal Territories) Act provides, among other things, that the whipping should be inflicted in a standing position for a male and sitting position for a female. A male offender must wear clothes that cover the region between the navel and the knee while female offenders must be fully clothed.
In fact, syariah whipping is similar to the whipping of child offenders under the Child Act 2001, namely that the person executing the whipping must use a light cane and average force, and does not lift his hand over his head so that the child’s skin is not cut. After inflicting a stroke, he must lift the cane upward and not pull it.
The whipping may be inflicted on any part of the child offender’s body except the face, head, stomach, chest or private parts. More importantly, the child must be fully clothed.
From the outpour of diverse opinions on syariah whipping, it appears that more needs to be learnt about the application of principles and value of civil and syariah whipping.
It would be appropriate to disseminate correct information and values of whipping from these two systems.
PROFESSOR DATUK SERI DR ASHGAR ALI ALI MOHAMED
Ahmad Ibrahim Kulliyyah of Laws
International Islamic University Malaysia