SEPTEMBER 4 — We have made it to the international news again. This time it was for the wrong reasons. Two women were caned in public for committing the offence of “Musahaqah” (sexual relations between female persons) under section 30 of the Syariah Criminal Offences (Takzir) (Terengganu) Enactment 2001.
Unsurprisingly, the said punishment rightfully caused a public uproar. The legality of the punishment, however, requires some examination.
Is caning a form of cruel, inhuman and degrading treatment?
While there is some debate on whether all forms of corporal punishment amount to torture, it is certainly beyond doubt that caning amounts to cruel, inhuman and degrading treatment under international law (lower threshold as compared to torture).
But some people who witnessed the caning said it is soft and does not cause much physical pain?
This is irrelevant. It is the infliction of physical violence by one human being on another and institutionalisation of the same that is at the heart ofthe prohibition.
It does not matter if the victim did not suffer any severe or long-lasting physical effects, what matters is that the victim was treated as an object in the power of the authorities, which constitutes an assault on a person’s dignity and physical integrity (Tyrer v United Kingdom).
The fact that the punishment was carried out in public perpetuates the degrading nature of the punishment, degrading treatment having been defined as “conduct as that which aroused in its victims feelings of fear, anguish and inferiority leading to humiliation and debasement and possible breaking of their physical or moral resistance.”
The victims would be emotionally scarred for life. One must always bear in mind that the prohibition covers both the physical and mental aspects.
But our Constitution does not mention cruel, inhuman and degrading treatment.
It does not. However, Article 5 guarantees the right to life and personal liberty. This includes the right to live with human dignity (see Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan  1 MLJ 261). The underlying purpose of the prohibition of cruel, inhuman and degrading treatment is human dignity, a concept which underpins all human rights and is upheld by all religions, including Islam.
What about the fact that the punishment was handed down by the Shariah Court?
Leaving aside the constitutionality of the offence itself (which is in my view unconstitutional), a number of groups have come out to argue that the execution of the punishment violated federal laws and regulations. In particular, it violates section 289 of the Criminal Procedure Code (exclusion of females) and the Prisons Regulation 2000 (for example, the requirement for the punishment to be carried out in a prison)
The reply, as usual, is that the punishment of such offences and the execution of the same are within the exclusive province of the Shariah Court.
This argument is, with respect, misconceived. The Federal Constitution (Item 1 of the State List) is very clear, where the relevant part reads, “the constitution, Organisation and procedure of Shariah courts, which shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law.”
There must be a federal law that confers jurisdiction on the Shariah Court to punish a person professing Islam. That law is the Shariah Courts (Criminal Jurisdiction) Act 1965 (which allows the Shariah Courts to impose the whipping sentence up to six strokes).
Without federal authorisation, the Shariah Courts would not have jurisdiction over any offence. This was confirmed by the Supreme Court in Haji Laungan Tarki v Mahkamah Anak Negeri Penampang  2 MLJ 85 (on both the native and shariah courts).
“In Peninsular Malaysia, the jurisdiction of the Shariah Courts is only over persons professing the religion of Islam and the Syariah Courts have only such jurisdiction in respect of offences as conferred by federal law. The federal law concerned is the Muslim Courts (Criminal Jurisdiction) Act 1965.
“...It is our view that the power to impose a prison sentence under section 7 of the Ordinance as opposed to power to award compensation can only be authorised by a federal legislation to be passed in accordance with Item 13 of List IIA of the State List.”
This is for the simple reason that criminal law, including the procedure and administration of justice, and prisons, is under the Federal List in the ninth Schedule to the Federal Constitution. As such, any punishment rendered by the Shariah Courts must conform to federal law.
Rewinding for a moment, wouldn’t the sentence of canning itself, including that imposed by civil courts for all crimes, be unconstitutional?
Yes it would. If human dignity is part of Article 5 of the Federal Constitution, both the death penalty and canning are unconstitutional. This is the position in international law. Most countries have abolished the death penalty and canning.
What about the policy arguments?
There are two common arguments for corporal punishment. The first would be the deterrent effect of the punishment. The fallacy of this argument has been addressed by various courts and bodies since the early 19th century.
Professor Kahn (often quoted by courts all over the globe) once said:
“Even making the utmost allowances for extraneous factors such as changes in population and in the efficiency of the police force and prosecuting authorities, it seems reasonable to conclude that the deterrent effect of compulsory whipping is nowhere to be seen. If this is so, its retention can only be attributed to some spirit of retribution or revenge.”
This leads to the second argument, society’s addiction with revenge and violence as a form of justice. While this is a problem that needs to be addressed, fundamental liberties cannot be made subject to public opinion.
As Justice Jackson said (in West Virginia State Board of Education v Barnette):
“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be appliedby the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”
* Surendra Ananth is an advocate and solicitor in the High Court of Malaya.
** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.