Lawyers: Caning for shariah offences has Parliament’s approval

However, the whipping which is carried out with a light cane is meant to bring about a feeling of repentance, not inflict pain, they say.

Reuters pic.

PETALING JAYA: It is legal for state religious authorities to prescribe caning for Muslim women as punishment for violating Islamic criminal laws as this has been sanctioned by Parliament, lawyers say amid reports that two women in Terengganu were sentenced to caning in the state’s first verdict on same-sex relations earlier this month.

The lawyers said the Syariah Courts (Criminal Jurisdiction) Act 1965 (Act 355) empowered authorities to mete out sentences of up to three years in jail, six strokes of the cane and RM5,000 fine.

This is in contrast to Section 289 of the Criminal Procedure Code governing both Muslims and non-Muslims which exempts women from being whipped.

When questioned about this, the lawyers said the Islamic way of caning differed from the punishment carried out on male offenders under secular civil laws.

Under the Criminal Procedure Code, drug offenders, kidnappers and the like are caned on the bare buttocks with a thick rattan stick which breaks the skin and can leave lifelong scars.

Under Islamic laws, meanwhile, offenders are caned on the back with a thin rod. They are also allowed to remain clothed.

Lawyer Farhan Haziq Mohamed said there was no question of Muslim women being discriminated against as Act 355 was validly enacted by the federal legislature for states to adopt.

According to the Federal Territories Syariah Criminal Procedure Act, he said, the rod used for whipping should be made either from rattan or the small branch of a tree without segment of joint.

Its length must not be more than 1.22m and its thickness not more than 1.25cm.

For pregnant offenders, he said, punishment would be postponed and could be carried out two months after delivery.

“I believe the mode of punishment by rattan is also similar in other states,” he said, adding that shariah law and courts came under state jurisdiction.

Earlier this month, two women in Terengganu were convicted of attempting to have lesbian sex. They were charged under shariah law and sentenced to six strokes of the cane and a fine of RM3,300.

The punishment was initially scheduled to be carried out on Aug 28. However, the Terengganu Shariah High Court postponed it to Sept 3 due to “technical reasons”.

The case has sparked an outcry with civil rights groups decrying the caning as torture.

Lawyer Kamar Ainiah Kamaruzaman said in Islam, women were given the same treatment as their male counterparts in the measure of punishment.

“Any whipping under shariah law is with a light cane, unlike similar punishments under the penal law which are about pain and torture,” he said.

Another lawyer, Jahaberdeen Mohamed Yunoos, agreed, saying caning under shariah law was meant to bring about a feeling of repentance rather than inflict pain.

He added that the Terengganu state ruler could spare the offenders from being caned as Islam was about compassion and mercy.

In 2010, a former model and nurse was sentenced to caning for drinking beer. However, her punishment was commuted by the Sultan of Pahang.

Kartika Sari Dewi Shukarno was instead ordered by the ruler to perform community service for three weeks.

She had been sentenced to six strokes of the cane and a fine of RM5,000 for drinking beer at a beach resort in December 2007. -FMT

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