Wooing Whipping Sentence: The Tales Between Two Codes of Criminal Procedures

Wooing Whipping Sentence: The Tales Between Two Codes of Criminal Procedures Dr. Siti Zubaidah Ismail Lecturer, Shariah and Law Dept, Academy of Islamic Studies University of Malaya 50603 KL szubaida@um.edu.my Introduction Judges are the one who decide on types of punishment meted on the offenders. When deciding on a sentence, they must consider the principles of sentencing, which are among others: protecting the public, punishing offenders, reducing crime and rehabilitating offenders. 1 They must also take into account the seriousness of the offence, the defendant s record (whether they have offended before) and the defendant s personal circumstances and whether they are remorseful. Judges may also hand down sentences combining two different options, such as by combining a jail sentence with a fine or whipping. Whipping or its many alternative terms: caning, flogging, - is one of the sentences provided for not only shariah criminal offences but other offences under various statutes. 2 It consists of striking the back side of the body using a cane. Whipping sentence is provided for certain offences (later shown in Table 2). As far as its provisions under the shariah criminal procedures enactments are concerned, the majority of states in Malaysia have the provisions in sound and clear terms. However, Kelantan is the only state that had handed down the sentence to offenders. Kelantan is ahead of her counterparts because a swift action, taken right after the codification of the Shariah Criminal Offences Enactment in 1985, to enact the Whipping Rules 1987. Now, 1 See for details in Barbara A. Hudson (1996), Understanding Justice, Buckingham: Open University Press 2 Penal Code, Dangerous Drugs Act 1952, Immigration Act 1963, Weapons Act 1971 just to name a few. 1

Kelantan is or rather should be seen as an exemplary state where whipping sentence is concerned. 3 This paper elaborates the systematic implementation of the sentence by referring to the then low-profile Whipping Rules of 1987 and the newly enacted Shariah Criminal Procedure Enactment (Kelantan) 2002 (later referred to as SCPC). However, the focus will be on the latter since it is the one applied at present. The latter enactment which contains provisions and the rules on how whipping ought to be done, will be compared with provisions under the Criminal Procedure Code (later referred to as CPC) and also the Prisons Regulations 2000. The objective of this paper is to highlight a very important point that implementing the whipping sentence need a holistic approach through the understanding of relevant statutes. This is because the states provisions must be in line with federal statutes so as to ensure its validity. Besides, the whipping sentence is enforced by the federal agency - the Prison Department. The impetus that spark the writing about the implementation of whipping sentence is the confusion surrounding the judgement of an intoxication case in Pahang (the Pahang case). About a year ago, Kuantan Shariah court found herself in a 'legal twist' as a result of pronouncing a sentence of whipping for two men of drinking alcohol in public. The punishment was accorded by virtue of section 136 of the Administration of Islamic Law and Malay Custom Enactment 1982 (Amendment 1987) which has yet to be gazetted at the time of the pronouncement of the judgment. Previously, the 1982 Enactment merely provided a one hundred ringgit fine and/or a jail term not exceeding fifteen days. The punishment was later amended in 1987 to increase the fine from one hundred ringgit to 3 To read more details about the Kelantan experience with the application of whipping sentence, see Siti Zubaidah Ismail, Pengalaman Negeri Kelantan Dalam Melaksanakan Hukuman Sebat Rotan Terhadap Kesalahan Jenayah Syariah" JURNAL SYARIAH, 12:1 [2004] 101-110 2

maximum five thousand ringgit and the offender can also be put into jail for up to three years and be whipped not more than six strokes of rotan. The judge (Abdul Rahman Yunus) gave the duo the maximum fine of five thousand ringgit and three strokes of rotan. To implement the corporal punishment, the term of reference used is as provided for under the Pahang SCPC 2003, by virtue of section 125 and 126. The problem is, in order to be applicable, the law itself must be gazetted beforehand and in this case, the 1987 Amendment is said to be inapplicable. The maximum fine meted on the first time offenders with respect is considered unusual and quite harsh. The case is pending appeal till present and the duo are released on bail for RM2,000 each. 4 States with provisions for whipping procedures To date, not all states provide the procedures for the implementation of this sentence, even though the agreement to standardize the enactment has already been reached. 5 Table 1 below shows the list of states with whipping procedures in their procedural enactments, which are: Kelantan, Federal Territory, Malacca, Pahang, Penang, Johore, Selangor, Perak, Sabah and Terengganu. No such provisions in Negri Sembilan, Sarawak, Kedah and Perlis. This four states still enforce the old version of enactment. The Kedah enactment for example is the oldest, used since 1988, while Negeri Sembilan, Perlis and Sarawak retain their 1991 laws until now. Other states -at presentare using the new law following the 1997 Federal Territory s enactment. 4 information gathered from Encik Shahruddin, an officer in Kuantan Shariah Court on 1 st September through a phone interview. 5 since 2001, the federal government has passed five laws approved by the Malay Rulers to be applied in Shariah courts: Islamic Family Law, Islamic Evidence, Islamic Civil Procedure, Islamic Criminal Procedure and the Administration of Islamic Law. See for example announcement as reported in "Penyeragaman Syariah, Utusan Malaysia, 22/09/2003, Penyeragaman undang-undang syariah telah capai 90 peratus" Utusan Malaysia, 24/11/2004 3

As far as the implementation of whipping sentence in Kelantan is concerned, the Whipping Rules 1987 has been used since 1987 until the new law called the Shariah Criminal Procedure Enactment was enacted and passed in 2001 and take force the subsequent year. The old provision was more or less incorporated into the latter law. Table 1: States with/without whipping procedures States Whipping procedures in SCPC Kelantan Federal Territory Malacca Negeri Sembilan X* Johore Selangor Kedah X** Perlis X* Perak Penang Pahang Terengganu Sabah Sarawak X* *SCPC 1991, **SCPC 1988 4

OFFENCES Table 2: Lists of shariah offences punishable with whipping as provided under the Shariah Criminal Offences Enactments or its relevant statutes in Malaysia (till September 2006) Sumbang mahram Prostitution muncikari Illicit s/i Act prep. to s/i Musahaqah Liwat Unnatural s/i Prostitute. Wife&daughter Intox. False doctrine STATES Perlis - - - - - - - - - s.24(1)** - - Penang s.20 s.21 s.21 s.23 - s.26 s.25 - - - s.4(1) Perak - - - s.48 - - - - s.47 - - - Selangor s.22 s.23(1) s.24 s.25 s.26 - - s.28 s.23(2) - s.7(1) s.11 FT s.20 s.21(1) s.22 s.23 - s.26 s.25 - s.21(2) - s.4 - NS - - - - - - - - s.72 - - - Melaka - - - - - - - s.58 - - - - Johor s.20 s.21 s.22 s.23 - s.26 s.25 - - - s.4(1) - Pahang s. 147 - - s.9 - - - - - s.136* - - Terengganu s.24 - s.28 - - s.30 - - s.26 s.27(1) & (2) Destroy mosque - s.4(1) - Kelantan - - - s.11 s.12 - s.14 - - s.25(1) - - Sabah - - - s.80 - - - s.76 - - - - * The Islamic Administration and Malay Custon Enactment 1982 (Amendment) 1987 ** without SCPC 5

Crimes Punishable with Whipping under the states enactments As evidently clear from Table 2 above, there are at least eleven offences provided with whipping sentence combined with imprisonment and/or fine upon conviction. These offences, pertaining to sexually related offences and moral offences like illicit sexual intercourse, drinking liquour, prostitution etc., are regarded as suitable offences to be punished with whipping. Given the increasing incidents of youngsters involvement with liquour or non-halal beverages and also sexual activities, flogging the offender might send a signal that shariah courts are serious about curbing those anti-social and un- Islamic behaviour. Suprising, there is one offence in Perlis and Negeri Sembilan intoxication and prostitution respectively are provided with whipping sentence even though no whipping procedure was made. In Kelantan, we could see that since the year 1988 to 2003, there are about eight cases where judges ordered the offenders to be whipped. Table 3 shows that among the cases are those involved with drinking liquour, incest 6 and act preparatory to sexual intercourse. It is also significantly clear that those guilty of drinking liquour was given the maximum six strokes of rotan. Table 3 Cases sentenced with whipping in Kelantan (as at 2003) No. Cases Offences No. of strokes* 1 Sharie Prosecutor v. Ibrahim Othman, Drinking liquour 6 strokes Zubaidah Deraman & Rohani Daud (female offenders Criminal Case 10/92 were not flogged) 2 Sharie Prosecutor v. Abd Halim Chua Drinking liquour 6 strokes Abdullah 3 Sharie Prosecutor v. Wan Othman Wan Omar Crim.Case 1/95 Drinking liquour 6 strokes 6 see a newspaper report "hanya tiga pesalah sumbang mahram dihukum sebat di Kelantan" Utusan Malaysia 21/11/2001 6

4 Sharie Prosecutor Kelantan v. Shahriman Sulaiman & Nor Asiah Aziz Criminal Case 7/98 5 Sharie Prosecutor v. Shamsuddin Mat Kasim Criminal Case 5/98 6 Mat Karim Mat Hussain v Sharie Prosecutor (together with daughter Nurul Asma Mat Karim) Criminal Case 4/2000 7 Muhammad Kamaruddin Jaafar Criminal Case 18/2000 8 Bentang Ngatah@Ngata v. Sharie Prosecutor 0300-142-1&2/2002 Act preparatory to zina Drinking liquor incest Act preparatory to zina Act preparatory to zina 3 strokes 6 strokes 2 strokes 3 strokes 1 stroke * Facts of the sentences are based on trial decision, not appeal. However, the number of cases presented here are not were collected during a research by writer in 2003. Whipping procedures in two Codes: A comparative profile The provision for sentence of whipping is provided for under sections 125 and 126 of the SCPC which outlines modes and regulations on how it should be carried out. Under Criminal Procedure Code (CPC), the related sections are 286 to 291. It should also be read together with sections 131 to 136 under the Prisons Regulations 2000 (later referred to as PR 2000). a. the rod In the matter of whipping rod, section 125 (2) explains that it, excluding its holder, shall be of the same type and make either from rattan or small branch of a tree without segment or joint and its length not more than 1.22 meters and its thickness not more than 1.25 centimeters. The size of rattan is similarly provided for under section 131(5)(a) of 7

PR 2000 to be used for civil offenders. In the case of juvenile offenders, a lighter cane shall be employed. b. the certification of fitness Section 125(3) SCPC provides that before the sentence is executed, the offender shall be examined by a Government Medical Officer to certify that the offender is in a fit state of health to undergo the sentence. He/She later will witness the execution till the end. The medical officer does not only serve as he is, but also considered as witness for the execution. In the mean time, if during the execution of the whipping the Government Medical Officer certifies that the offender is unfit to receive more strokes, the whipping shall be postponed until the Medical Officer certifies that the offender is fit to undergo the balance of the sentence. Similarly, if the Government Medical Officer certifies that the offender, due to old age (meaning fifty years and above), illness or any other reason is unable to undergo the whipping sentence wholly or partly, the case shall be referred to the Court which may order the execution of the sentence in a manner as it thinks reasonable. This is likely so under section 290 of CPC c. the authorized personnel The SCPC does not specify any authorized person to deliver the whipping, limiting it to a general description of "adil" as stated under subsection (d) below: (d) the person appointed to execute the sentence shall be an "'adil" and mature person; 8

Practically, the prison officer or warden is the one who delivers the whipping. They are trained and regulated by the Prison Act 1995. In Kelantan, the prison officers stationed in Pengkalan Chepa Prison, Kota Bharu are the one regularly responsible for the execution. 7 d. the mode of infliction The prison officer is trained to inflict the sentence where he: (a) shall use the whipping rod with average force without lifting his hand over his head so that the offender's skin is not cut; (b) after inflicting a stroke, he shall lift the rod upward and not pull it; (c) whipping may be inflicted on all parts of the body except the face, head, stomach, chest or private parts. In actual practice, flogging is inflicted at the back. (d) the offender shall wear clothes according to Hukum Syarak; If the offender is sentenced to whipping only, not combined with a jail term as happened to the duo in the Pahang case, the SCPC states: (4) In the case where the offender is sentenced to whipping only, then he shall be dealt with as if he is sentenced to imprisonment until the sentence is executed. Even though he shall be sent to jail to facilitate the punishment, the whipping should be inflicted as soon as practicable. This is clearly stated under section 126(2) of the SCPC. (2) The whipping shall be inflicted as soon as practicable and in case of an appeal, as soon as practicable after the receipt of the order of the appropriate appeal Court confirming the sentence 7 see for details in Siti Zubaidah Ismail, supra note 3. 9

In the case where the accused is sentenced to whipping in addition to imprisonment, the whipping shall not be inflicted if an appeal is made and until the sentence is confirmed by the appropriate appeal Court. Under section 287 of CPC, it was stated that the whipping cannot be executed until after seven days or, if the jail sentence is just fourteen days, the punishment can only be done on the fifteenth day. Even though the SCPC provides the methods of inflicting whipping upon female offenders and those who are pregnant, this proviso is clearly in contrast with section 289 CPC and section 131(2) of PR 2000 where female offenders are spared the rod. Discussion It is often argued that the sentencing process is aimed at punishing, retributing and must be capable of serving as a preventive measure for the society at large. 8 Therefore, consideration for public interest is the prime element in sentencing. With the limited power granted to shariah court by the Shariah Court Act (Criminial Jurisdiction) 1965 (Amendment) 1984, all shariah courts have is the "3-6-5 sentence" and the judges must work within this sphere to achieve (sic!) the prime objective of educating and creating awareness among the offenders. 9 In most shariah courts by far, the most commonly used punishment is imprisonment with or without fine. If we are to curb the deviant acts and shariah crimes at large, then the trend in punishment must be reviewed. It is also argued that increasing the jail term and monetary fine can to some or lesser extent reduce the 8 See for details in H.L.A Hart, Punishment and Responsibility, (New York: Oxford University Press, 1968). See also Ted Honderich, Punishment: The Supposed Justification (London: Hutchinson Ltd, 1971) 24-48 9 Lihat lebih lanjut dalam Hashim Mehat, Malaysian Law and Islamic Law on Sentencing (Kuala Lumpur: ILBS, 1991) 10

crime rate. From another perspective, I would rather say, implementing the whipping sentence would be able to reduce some of the crimes like intoxicating, sexually related crimes and so on. What is left to the state government and officers in charge is to develop a mutual agreement and co-operation with the Prison Department where shariah offenders will be whipped. The prison officers must be trained and educated with the legal requirements and regulations surrounding the imolementations of whipping according to shariah criminal procedure enactments. Conclusion What is evident from this brief discussion here is that, there is a future for whipping sentence because the provisions are adequate, if not complete. Kelantan should have inspired other states to implement it. What more, the understanding of related laws surrounding the whipping process is highly required of judges and other shariah officers in this country. So, it is timely for them (judges) to shift their paradigm from leniency towards the "zero tolerance" or "get tough" approach that is important given the contemporary character of shariah crimes in Malaysia. 11