THE debate on Islamic law has resurfaced with the widespread media coverage on the recent amendment to the Kelantan Syariah Criminal Procedure Enactment 2002 that allows public caning for offences such as zina, false accusation of zina, sodomy and alcohol consumption.
The words “public” and “caning” have to be explained from the context of syariah.
Caning is a form of punishment not only provided for under the syariah system but also the civil system for offences, including theft, robbery, molestation, kidnapping, causing grievous hurt, drug abuse, vandalism, extortion, sexual abuse, unlawful possession of weapons and illegal moneylending. This is provided for in Sections 325 to 332 of the Criminal Procedure Code.
Caning under the civil system is harsher compared with caning under syariah law. Under the civil system, caning is painful and usually leaves significant bleeding and physical injury. It is seen as a form of deterrence, as well as a rehabilitative sentence, and enjoys the status of retributive punishment. Women and men above 50 and those sentenced to death are exempted from caning.
Caning under the syariah criminal statutes is moderate, with average intensity and the offender is clothed when the strokes are delivered. Caning may be inflicted on all parts of the body, except the face, head, stomach, chest or private parts. If the offender is a male, caning shall be inflicted in a standing position, and if it is a female, it is in a sitting position.
In the civil system, punishment is administered in an enclosed area in the prison out of the public view or other inmates, with the exception of a medical officer, who is present to ensure the prisoner is medically fit for the punishment.
In Islam, public caning is sanctioned by the Quran, for example, in Surah al-Noor, verse 2, in relation to fornication, “And let a party of the believers witness their punishment”. For Muslims, this is divine revelation and must be followed. Public caning is practised in Aceh and Saudi Arabia for syariah offences, such as gambling, drinking and adultery. This is carried out at a proper designated public place, such as in a mosque compound, and not in a marketplace or roadside as imagined by some.
The public caning date would be announced, and may be attended by anyone, including the offender’s family members. It is submitted that this type of caning, being public in nature, would serve its purpose of being a deterrent, not only for the offender, but also society.
A serious crime has been committed, so the offender has to be taught that crime does not pay and the rest may be restrained from becoming a menace to society. This will reduce crime considerably.
It is noteworthy that public shaming or humiliation as a form of punishment has been around since ancient times and has been effective in deterring crime. This is the same for Islamic law that was ordained 1,400 years ago.
In recent years, public humiliation punishment has been removed since the practice is considered cruel, and against the 1948 Universal Declaration of Human Rights, which preserves, among others, human dignity.
In Malaysia, human rights activists state that it violates Articles 5 and 8, which deal with right to life and equality respectively, of the Federal Constitution. However, by preserving the dignity of a person who has committed a heinous crime, it is denying other citizens their right to Articles 5 and 8.
When the law does not adequately protect its citizens, it is submitted that its citizens have no quality of life.
It cannot be denied that today, we live in fear of criminals, even as we sleep. There are public shootings, burglaries, rapes and murders being committed in unthinkable ways. Criminals are becoming bolder.
Perhaps, we need public caning to show that crime does not pay in a civilised society. Crimes such as adultery, drinking liquor and gambling have adverse consequences on society. The masses would be horrified when it is made aware of what will happen to them as a consequence of their evil deeds, an effect that will not be felt if caning was done in an enclosed area.
PROFESSOR DR ASHGAR ALI ALI
MOHAMED
Dean, Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia