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Judicial CP - September 2017

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The Malaysian Insight, 5 September 2017

Public whipping may go national, warns think tank

PUBLIC whipping is legal in Malaysia and more states could follow Kelantan's footsteps as current laws only regulate ways and methods Islamic punishment is meted out, a researcher has pointed out.

Due to existing legal loopholes, mandatory public whipping may catch on should state governments follow Kelantan in strengthening its Islamic laws, which it did in July, Nidhal Mujahid, political analyst with the Penang Institute said.

Under the existing legal framework, Nidhal also found that public whipping does not require the passing of the amended bill of the Shariah Courts (Criminal Jurisdiction) Act, popularly known as Act 355, in Parliament.

"Implementing Act 355 merely governs how many lashes of the whip are to be meted out, not how the corporal punishment is to be carried out," Nidhal said in a research paper, "Mandatory Public Whipping May Become a National Trend".


"This may have far-reaching implications and warrants the conduct of in-depth research and open discourses on the matter," he said.

On July 12, the Kelantan state legislative assembly passed amendments to its Kelantan Shariah Criminal Procedure Enactment 2002 which now allows, among others, shariah criminal offenders to be whipped in public.

Currently, in all states except Kedah, whipping of up to six lashes is meted out as punishment for a wide range of shariah criminal offences, under subsection 125(3)(c) of the shariah criminal procedure laws.

Unless whipping is declared "null and void" by the courts, the three recent cases of public whipping in Tawau, Sabah have shown that the Shariah Courts do indeed have the power to order their public execution, Nidhal said.

"If the Kelantan amendment is to be followed by other states -- a likely development considering the current uniformity of subsection 125(3)(c) across the states -- public whipping may soon become a national trend."

"Considering the fact that some states apply the whipping sentence widely -- Pahang for example, metes out whipping sentences to Muslims who sell alcoholic drinks, abuse the halal sign, and are pregnant with or have given birth to children conceived out-of-wedlock -- this national trend will have far-reaching implications not just to Muslims, but the entire nation as well," he said.

Nidhal said the overlapping of the shariah criminal enactments and the Penal Code (Act 574) renders whipping sentences unenforceable for certain Shariah criminal offences such as sexual intercourse between men (liwat), and accusing Muslims of leaving their faith (takfir).

However, shariah criminal offences such as fornication (zina) and the illegal consumption of alcohol do carry the enforceable punishment of the whip.

The significance of mandatory public whipping warrants in-depth research as well as the holding of open, rational, and wise discourses involving the entire society, Nidhal said.

PAS president Abdul Hadi Awang first tabled a private member's bill to amend Act 355 last May, seeking to enhance the powers of the Shariah Court.

The bill was then taken over by the government, represented by Minister in Prime Minister's Department Jamil Khir Baharom, who is in charge of religious affairs and also heads the Malaysian Islamic Development Department (Jakim), and tabled again in an amended form.

The amended bill proposed to increase shariah punishment caps from a maximum of three years in jail to a maximum of 30, from a maximum RM5,000 fine to a maximum of RM100,000, and from a maximum of six strokes of the cane to a maximum of 100.

Most opposition and Bornean lawmakers opposed the bill. Prior to his death in January, the late Sarawak Chief Minister Adenan Satem had instructed the state's BN MPs to oppose any form of hudud.

After consulting BN component leaders, Prime Minister Najib Razak in March called off plans to amend Act 355.

However, Hadi's bill remains on the order papers in the last Parliamentary sitting in July. He has denied he was seeking to implement hudud.

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