Shariah caning in courtroom unlawful too, lawyer says

BY BOO SU-LYN
Datuk Kuthubul Zaman said the caning of Shariah offenders in a civil courtroom in Sabah last year contravened the Prisons Regulations 2000. — Picture by Saw Siow Feng

KUALA LUMPUR, July 16 — The caning of Shariah offenders in a civil courtroom in Sabah last year contravened the Prisons Regulations 2000, a lawyer said amid a debate on the constitutionality of public whippings.

Datuk Kuthubul Zaman, who is the Bar Council’s Shariah law committee chair, highlighted Regulation 132 of the Prisons Regulations, which he said “clearly provides that whipping must be done in prison”.

Regulation 132 states that any punishment imposed on a prisoner “may be carried out in any prison, or partly in one prison and partly in another”.

“So even the civil courtroom is never used for whipping. My opinion is it is unlawful to conduct Shariah caning in civil courts,” Kuthubul told Malay Mail Online.

Amid the controversy surrounding Kelantan’s decision to implement public whippings for Shariah offences, it was revealed that three whipping sentences meted out by Sabah’s Shariah courts in 2014 and 2016 had been carried out in courtrooms, one of which was a civil courtroom reportedly due to a request by participants of an unknown seminar who wanted to observe Shariah whipping.

Minister in the Prime Minister’s Department Datuk Seri Jamil Khir Baharom reportedly said yesterday that the whipping sentences currently carried out in prisons could be deemed public caning in Islam, as the religion only required more than two observers.

He pointed out that in prison whippings, there were already more than two observers, including a doctor and religious officer.

“With the greatest respect, a prison caning can never be public caning under Shariah principles and hence, the amendments by the Kelantan state government. If the current practice is Islamic, then there is no necessity of any amendments,” Kuthubul said in response.

“My opinion is public caning involves bringing the convicted person before the general public in a public place as now practised in Acheh, Indonesia. Even Acheh is now reconsidering this as foreign investment has declined in Acheh province,” the lawyer added.

US paper the New York Times recently reported that Acheh, which implements Shariah law, was considering halting public canings to avoid any negative impact on foreign investment, after last May’s caning of two men before a jeering crowd for gay sex drew international headlines.

The Kelantan state legislative assembly passed last Wednesday amendments to the state’s Shariah Criminal Procedure Enactment 2002 that would allow Shariah offenders in the PAS state to be caned publicly. Caning is a standard punishment in both civil and Shariah law in Malaysia.