In the wake of the caning of two women in Terengganu, the Joint Action Group for Gender Equality (JAG) and other concerned civil society actors urge the Malaysian government to immediately enforce a moratorium on corporal punishment.
The caning, carried out in open court on 3 September, marked a dangerous escalation in the practice of corporal punishment, causing nationwide disbelief and outrage.
No such thing as “compassionate” caning
Response by various state parties have reached a level of absurdity with comparisons made between the methods of caning under Syariah and Civil law to differentiate which is “more compassionate”.
We remind all parties that there is nothing compassionate about caning, what more as a state-orchestrated public spectacle. There is also nothing compassionate about defending and normalising such violence and humiliation as a means to educate.
We call on all parties to stop pitting one judicial system against the other as we are all subjected to the same democratic process and principles. Whipping, caning and other forms of corporal punishment are long-standing issues in the Malaysian justice system with overwhelming evidence showing that these punishments are cruel, inhumane and degrading.
Systemic denial of access to justice
The Terengganu case further highlights a critical systemic problem of access to justice for women and marginalised groups.
JAG’s sustained work in supporting women as well as lesbian, gay, bisexual and transgender (LGBT) persons shows it is extremely challenging to obtain legal representation and support in morality-related cases under the Syariah system. It often leads individuals with little or no legal advice to admit guilt as the only plausible way to end the traumatic experience of a state prosecution that relies heavily on the machinery of shame.
This seems to be the case for the two women in Terengganu who, without legal representation, changed their initial plea from not-guilty to guilty only to receive maximum whipping sentence by the court.
Misuse of the criminal justice system
Arguments that state Syariah punishments are independent of federal jurisdiction are invalid, as witnessed in Terengganu where a doctor and prison officers who are part of the federal system of governance were directly involved in the execution of the caning.
The Federal Constitution states that laws on crimes are within federal jurisdiction. It is therefore unconstitutional to hold that all areas of Syariah criminal law are purely under unlimited state jurisdiction.
The use of corporal punishment also contravenes the spirit of federal criminal law “to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are vulnerable”.
Cruel methods such as caning ought to be prohibited as it causes irreversible and considerable mental and physical injury. The use of such methods in Terengganu perfectly illustrates how the state Syariah system has deviated from the objective of criminal justice to protect people from “injury”.
We are deeply concerned by the systemic failure evident in this case: The women, who had changed their plea in the middle of the proceeding, were not represented by lawyers to defend them at any stage. As a result, they received the maximum sentence in caning as well as a fine. Over and above that, the coup de grace of the cruelty of a public caning.
Moratorium on corporal punishment
Malaysia’s justice system is in crisis and to resolve it, we are calling for a moratorium on corporal punishment as an immediate first step.
JAG submitted a memorandum to the Prime Minister and his Cabinet on 30 August outlining the grounds for ending corporal punishment from multiple perspectives—Syariah, Constitutional and legal; and in accordance with international human rights principles.
JAG calls upon the Attorney General to immediately review all state Syariah criminal law enactments. This needs to be done urgently to ensure their constitutionality, and to fulfill Malaysia’s commitments to international laws and standards. We urge all state governments to impose an immediate moratorium on corporal punishment.
This will launch Malaysia onto the right path towards realising the government’s commitment towards human rights and ratify the remaining six human rights conventions, including the UN Convention against Torture and other Cruel, Inhuman and Degrading Treatment and Punishment (CAT).
The caning of the two women in Terengganu, and all the women before that, is a travesty and a grave miscarriage of justice that must never be repeated again. Human dignity is the basis of human rights. As our Prime Minister rightly pointed out: Islam should not be portrayed as fierce (bengis), but as a religion that is compassionate and accepting of differences.
Endorsed by the following JAG member organisations:
All Women’s Action Society (AWAM)
Association of Women Lawyers (AWL)
Foreign Spouses Support Group (FSSG)
Justice For Sisters
Perak Women for Women (PWW)
Persatuan Sahabat Wanita Selangor (PSWS)
Persatuan Kesedaran Komuniti Selangor (EMPOWER)
Sabah Women’s Action Resource Group (SAWO)
Sarawak Women for Women Society (SWWS)
Sisters in Islam (SIS)
Women’s Aid Organisation (WAO)
Women’s Centre for Change (WCC)