Does public caning exceed Act 355 jurisdiction?

 

On Nov 20, the Kuala Terengganu Syariah High Court handed down the sentence of six lashes in public for repeated offences of khalwat (close proximity) against carpenter Mohd Affendi Awang.

The sentence was meted out after Affendi pleaded guilty to repeated khalwat offences under Section 31 (a) of the Syariah Criminal Offences (Takzir) (Terengganu) Enactment Amendment 2022.

The punishment has, however, solicited knee-jerk reactions from many as it will be carried out publicly at Masjid Al-Muktafi Billah Shah in Kuala Terengganu.

In its press statement, Suhakam - while taking note that the caning under syariah laws is different from civil law - argued that in imposing public caning, the Terengganu Syariah Court had exceeded its jurisdiction which is conferred by federal law, namely, the Syariah Courts (Criminal Jurisdiction) Act 1965 (Act 355).

Suhakam also contended that Act 355 only permits caning and not public caning.

It also averred that Section 125(3)(c) of the Terengganu Syariah Criminal Procedure Enactment 2001, which permits the Syariah Court to direct the place of caning to be before the public, is not envisaged by Act 355.

It implied that Suhakam was of the view that Section 125(3)(c) of the Terengganu Syariah Criminal Procedure Enactment 2001 is ultra vires Act 355.

Different interpretations

Under the existing criminal legal system, the sentence of caning is duly recognised as a form of punishment either under civil or syariah laws.

Be that as it may, the imposition of caning is perfectly legal under both systems as long as the relevant penal section allows the courts to do so. The residual issue is whether public caning is duly envisaged under both civil law and syariah law.

Apparently, the view differs. Though the word “public” is missing from the word “caning” in Act 355, the proponents of such a public caning claim that the said punishment is not sensu stricto prohibited by the law because such a sentence is merely one of the forms of caning.

In other words, the execution of caning may be carried out either in a designated private place or in a designated public arena, provided there must be a direction to that effect by the trial judge.

Ergo this school of thought totally rejects the restrictive and pedantic interpretation of the word caning employed by Suhakam.

This school also believes that section 125(3)(c) of the Terengganu Syariah Criminal Procedure Enactment 2001 is akin to Section 286 of the Criminal Procedure Code (CPC) of Malaysia which states that when an accused is sentenced to caning, the court will direct the time and place for the execution of the sentence.

Granted, under civil law, the execution of caning is not carried out in public places. This is because the whole philosophy of caning under Islamic law and civil law is totally different.

In fact, Suhakam duly acknowledged such differences. Under civil law, caning is inflicted on the convicted offender for the sole purpose of causing pain and agony to him.

Such a punishment is primarily designed to deter the offender only. Therefore, public caning is understandably unnecessary.

On the contrary, caning under Islamic law ought to be publicly administered. The objectives of such a punishment are manifold. One of them is to educate the public.

Hence, according to this school, it would defeat the purpose if it is not carried out in public. Of course, the element of deterrence would be factored in as well but not through an infliction of pain and agony to the offender. 

The ‘Western-Eastern’ divide

Thus, it is crystal clear from the get-go that the point of departure for these two laws is not the same.

Suhakam also raises the issue that the public caning constitutes cruel, inhumane, and degrading treatment.

With due respect, it would be highly unfair for Suhakam to easily conclude that public caning constitutes cruel, inhumane, and degrading treatment.

By making such a sweeping statement, bereft of cogent evidence, it seems to utterly disrespect other jurisprudence which prefers to have different sets of laws for certain crimes.

Suhakam seems to embrace the universalistic conception of human rights, which is often described as the so-called “Western” model.

This model has been accused of advocating an individualistic approach to rights that prioritises the individual’s rights against society.

Universalism believes that the fundamental values and principles highlighting the concept of human rights are of universal character. Every human being is, therefore, entitled to be protected from any human rights infringement.

By contrast, the “non-Western values” approach emphasises social stability, privileging community and duties over the rights of the individual.

Relativism, being a long-standing rival of universalism, is normally characterised as a set of views about the connection between morality and culture or humanity.

In essence, cultural relativism is based on the morals, ethics, and customs of each human society.

The idea of relativism challenges universalism and the intent of the declaration. Hence, the relativist believes that beliefs, values, and therefore rights are a product of culture.

They vary. And they differ from culture to culture or place to place. Relativists hold the view that there is no such thing as “one size fits all” in so far as human rights are concerned. - Mkini

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MOHAMED HANIPA MAIDIN is a former deputy minister of law.

The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.