MCA man says Kelantan Shariah law allowing caning of women unconstitutional

KUALA LUMPUR, July 15 — Civil criminal laws disallow the caning of female offenders but a Kelantan Shariah law instead allows for them to be caned if not pregnant, a MCA leader has said.

MCA religious harmony bureau secretary Chris Daniel Wong highlighted the differing position of the federal law and the state law on the caning of women.

“Under the federal Criminal Procedure Code, women cannot be caned. But under the Kelantan Syariah Criminal Procedure Enactment 2002, which includes a provision for public caning, women who are not pregnant may be caned,” he said in a statement yesterday titled “Shariah court sentences limited to Federal Constitution provisions; States legislations cannot construct new punishments”.

Wong was commenting on the Kelantan state legislative assembly’s Wednesday approval of amendments to its Kelantan Syariah Criminal Procedure Enactment 2002, which among others will now allow Shariah offenders to be caned publicly.

Wong said that this bid to change the Kelantan law is “futile” and “merely an academic exercise”, reminding the PAS-led Kelantan government that any state-level criminal law is subject to the Penal Code as a federal law.

He highlighted that the Federal Constitution’s Ninth Schedule’s List II or State List provides for the creation and punishment of offences committed by Muslim offenders against the precepts of Islam as falling within the state government’s jurisdiction, except for matters included under the Federal List or matters falling within the federal government’s jurisdiction.

“In simpler terms, states can make law to create offences against the precepts of Islam except in regard to matters included in the Federal Lists,” he said.

“PAS’ move only serves to confuse the people, and even worse, encroach into existing federal legislation ie the Penal Code which outlines punishments for offences, and the provisions of the Federal Constitution,” he said.

Kelantan cannot immediately enforce public caning for Shariah offenders, as the approved amendments to the state law would first require royal assent from the Kelantan Sultan before being gazetted and enforced.

In a report by local paper The Star today, Kelantan exco member Datuk Nassuruddin Daud said that “caning in Islam is not meant to torture but to teach the offender a lesson so as not to repeat the offence”, noting that it was unlike “whipping in Western-influenced secular laws that can cause bleeding”.

He said those caning Shariah offenders are told not to hold the cane above the shoulder when carrying out the punishment in order to inflict less pressure and avoid causing bodily injuries, adding that the cane is specified to be 1.22 metres long and with a diameter of 1.25 centimetres.