KUALA LUMPUR, Sept 6 ― The federal government can amend the Shariah Courts (Criminal Jurisdiction) Act 1965 to remove whipping as a sentence, lawyers said amid outrage over the Shariah caning of two women in Terengganu.
Senior civil and Shariah lawyer Nizam Bashir acknowledged that Islamic law was under state jurisdiction, which ministers in the Pakatan Harapan (PH) government have cited as their reason for non-intervention in the case of PAS-led Terengganu.
“Nevertheless, this does not mean that the federal government's hands are therefore tied,” Nizam told Malay Mail.
"The federal government can always amend Section 2 of the Shariah Courts (Criminal Jurisdiction) Act 1965, and remove whipping as a sentence which the Shariah Courts are entitled to mete out," he added.
Section 2 limits punishments by Shariah courts to three years’ jail, six strokes of the cane, and RM5,000 fines.
Nizam also disagreed with several civil societies which said that caning could only be enforced upon prisoners. The young Muslim women who were whipped six strokes of the cane last Monday for attempting to have lesbian sex had not been jailed.
He pointed out that this was because one cannot equate legal provisions stipulated under Shariah laws with those under civil laws and vice versa, or enforce the latter against the former.
Two women’s rights groups had slammed the Terengganu Shariah High Court for publicly caning the women, describing the punishment as “a travesty and a grave miscarriage of justice”.
"There are some quarters who subscribe to the view that caning can only be done in prisons pursuant to Rule 132 of the Prison Regulations 2000, and there is potent force in their argument, as there are no Shariah prisons or Shariah prison officers. Consequently, caning or whipping can only be done in a federal prison.
"That aside, dealing with views of rights groups who say that caning also violates the Procedure Code, I don't think they would be correct in their view as the civil version of the CPC does not apply to Shariah criminal offences," said Nizam.
Constitutional lawyer Syahredzan Johan echoed Nizam's sentiment, saying provisions in the Prisons Act, Prison Regulations, and the CPC do not apply to caning under Shariah law.
"For example, Regulations 131 and 132 on corporal punishment in the Prisons Regulations 2000, often cited to say that caning can only be carried out in prisons actually refers to corporal punishment for offences under the Regulations themselves, and not all caning punishments.
"As for the CPC, Chapter 27, which contains provisions relating to whipping, refer to whipping sentences carried out by the criminal courts, not the Shariah courts. I am of the opinion that these laws cannot be relied on when discussing the legality of the caning by the Terengganu Shariah courts," Syahredzan said when contacted.
In light of this, the senior lawyer said that the caning by the Terengganu Shariah court did not appear to contravene any federal laws and, as such, the matter was outside federal jurisdiction.
"There is one way. If the federal government amends the Shariah Court Act and takes away the power of the Shariah court to mete out the sentence of caning.
"Meaning, caning cannot be done by any Shariah Court at all. But that is too drastic, and I doubt anyone has the political will to do that," he said.
Senior Shariah lawyer Datuk Akbardin Abdul Kader said if one is unhappy with the Shariah law permitting caning, they can challenge it in the Federal Court.
Until then, Akbardin said the laws practised by the Shariah courts were good laws.
"It's unfortunate that the two offenders in Terengganu failed to appeal on the sentence to the higher court. Hence the decision is valid and correct as per the Terengganu Criminal Enactment, and no one shall question it," he said, adding that this is already stipulated under Article 121(1A) of the Federal Constitution.
The said constitutional article provides that the civil courts cannot interfere in the Shariah courts.
"It must be remembered that like in the civil law, the objective of sentencing in Islamic law is deterrence. So we are guided by the Quran and prophets traditions and any international treaties, which are contrary to the two sources, are to be disregarded and have no legal force. Unless such treaties are in the form of edicts (fatwa) made by authoritative international Islamic bodies or scholars," he added.
On Monday, two women were punished by six strokes of the cane under Sections 30 and 59(1) of the Shariah Criminal Offences Enactment (Takzir) (Terengganu) 2001 after they pleaded guilty to lesbian sexual relations.
In addition to being caned, the women aged 22 and 32 were also required to pay a fine of RM3,300.
Around 100 people witnessed the punishment in the courtroom, including public onlookers, government agencies’ representatives, and NGO members.
After the Terengganu caning, Pahang and Kelantan ― under Barisan Nasional and PAS rule respectively ― are reportedly considering following suit.