The International Commission of Jurists has condemned the public caning of two women, a punishment imposed upon them by the Terengganu High Court after conviction on charges of “attempting to have sexual intercourse”.
The ICJ called on the government of Malaysia to immediately abolish the practice of caning as it constitutes a form of cruel, inhuman or degrading punishment prohibited under international human rights law and standards.
Furthermore, it also called on the government to ensure that its laws, policies and practices at the local, state, and federal levels are in full compliance with its international legal obligations, including under the Convention on the Elimination of all forms of Discrimination against Women (Cedaw).
On 3 September 2018, two women, aged 23 and 33, were publicly caned in front of a hundred people in Terengganu, a coastal state of Malaysia, located north east of Kuala Lumpur.
The two women were convicted under Section 30 of the Sharia Criminal Offences (Terengganu) Enactment 2001, for the crime of ‘musahaqah’ (sexual relations between female persons).
“This punishment is a clear violation of Malaysia’s obligations to prevent, prohibit and prosecute all forms of torture and other cruel, inhuman or degrading treatment or punishment. The government of Malaysia should immediately abolish the practice of corporal punishment, which has been condemned by international authorities such as the UN Human Rights Council’s special rapporteur on torture,” said Emerlynne Gil, ICJ’s senior international legal adviser.
“It is equally deplorable that Malaysia continues to criminalise consensual same sex relations. The criminalisation of private consensual sexual activities – whatever the sex, gender identity and sexual proclivities of those involved, and whatever the actual sexual practices – violates international human rights law. It also undermines women’s enjoyment of their rights to privacy, personal integrity, and equality,” she added.
The Human Rights Committee has said that criminalising private sexual acts between consenting adults constitutes an arbitrary interference with privacy and cannot be justified.
It has also observed in a number of concluding observations that the criminalisation of private consensual sexual activities between adults of the same sex violates the prohibition of discrimination and the right of equality before the law.
The ICJ also notes that early this year, the Cedaw Committee recommended to Malaysia to “take effective measures to ensure that civil law and Sharia law are in full compliance with the provisions of the Convention at local, state, and federal levels” so as to guarantee the rights of all women throughout the country.
The ICJ calls on the government of Malaysia to abide by its obligations under international law and follow through with its commitment to human rights, non-discrimination and equality by abolishing the sentence of caning and the criminalisation of consensual same sex relations in the country.