The Human Rights Commission of Malaysia, Suhakam, expresses its deep concern over the decision of the Terengganu Sharia Court in the case of Mohd Affendi Awang, a 42-year-old carpenter, who was sentenced to six lashes in public after being convicted of repeated khalwat (close proximity) offences under Section 31(a) of the Syariah Criminal Offences (Takzir) (Terengganu) Enactment 2022.
This punishment undermines human rights, dignity and the rule of law. The commission takes note that the whipping under Sharia laws is different from civil law.
Be that as it may, the sentence not only constitutes cruel, inhuman and degrading treatment but also raises serious questions regarding the legality of public caning under the Federal Constitution and federal law.
Clear breach of human rights
Public caning is an affront to human dignity and violates a basic principle enshrined in both international law and the Federal Constitution.
Article 5 of the Constitution guarantees the right to life and personal liberty, which the courts have affirmed includes the right to live with dignity (Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan [1996]).
The public execution of such a punishment exacerbates its degrading nature, subjecting the individual to humiliation, anguish and shame.
Such a practice not only is inconsistent with human rights standards but also dehumanises the individual and perpetuates a cycle of stigma, rather than focusing on rehabilitation.
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Jurisdictional overreach and legal irregularities
Suhakam is of the view that the Terengganu Sharia Court, in imposing public whipping, exceeds its jurisdiction as conferred by federal law, namely, the Syariah Courts (Criminal Jurisdiction) Act 1965, which only permits whipping and not public whipping.
Section 125(3)(c) of the Terengganu Syariah Criminal Procedure Enactment 2001, which permits the Sharia court to direct the place of whipping to be before the public, is not envisaged by Syariah Courts (Criminal Jurisdiction) Act.
The commission is of the view that directing whipping before the public renders the punishment in excess of or ultra vires to the act, as well as to be in violation of the jurisdictional limitation imposed by Item 1 of the State List of the Federal Constitution.
Need to uphold dignity and rule of law
Punishments that inflict physical violence and public humiliation have no place in a modern justice system. They undermine Malaysia’s commitments to human rights, tarnish its legal integrity and erode the dignity of individuals – a value upheld by all religions, including Islam.
Suhakam is steadfast in advocating for the abolishment of corporal punishments regardless of whether they are imposed by judicial authorities or by educational authorities.
It is high time Malaysia becomes a party to the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as many other Muslim-majority countries have already ratified or acceded to this convention.
We respectfully call upon the relevant authorities to reconsider the implementation of public caning, and instead to respect and uphold the Federal Constitution, federal laws and human rights.
We must endeavour to abolish practices that violate human dignity and to focus instead on rehabilitative justice.
Judicial punishments must never be carried out at the cost of human dignity.
Public caning, regardless of whichever authority that imposes it, constitutes cruel and degrading treatment and has no place in a society that values justice, compassion and the rule of law. – Suhakam
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