A Comparative Study on Whipping as Punishment for Muslim Women Offenders Yuhanza Binti Othman, Ekmil Krisnawati Erlen Joni, Ida Rahayu binti Mahat Faculty of Law, UiTM, Kampus Bandaraya Melaka [email protected]

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edu. my ABSTRACT Imposing whipping sentence serves not only to punish the offender for crime committed but to deter commission of the crime in the future. There are various offences which are punishable by whipping such as rape, kidnapping in order to murder, incest, and others.The provision for whipping sentence exists in both Syariah and civil law.

The Criminal Procedure Code 1999 contains clear provisions pertaining to whipping on male offenders only because Section 289 of this Code expressly states that women offenders are exempted from whipping sentence. The Syariah law, however, does not distinguish male and female offenders as regards imposing whipping sentence as all offenders shall suffer the same modes of sentencing when they committed any crime.Nevertheless, Syariah Court judges in Malaysia have been reluctant to impose whipping sentence on women offenders until recently. In 2009, the Malaysian public was shocked when the Syariah Court granted whipping sentence to Kartika Seri Dewi Sukarno, Noorazah Baharuddin for consuming intoxicating beer and three other women offenders for Sexual intercourse out of wedlock.

The Syariah law in Malaysia has several provisions pertaining to whipping sentence for offences such as drinking intoxication, incest and adultery; however, there is unclear procedure on whipping Muslim women offenders.Thus, this research shall study and analyse the procedural guideline on whipping sentence for Muslim women offenders by analysing the existing law in Malaysia and comparing the law of whipping sentence in other countries. It is hoped that this research would provide a concrete description, explanation and recommendation in improving the Syariah law in Malaysia on whipping in deterring the accused and the general public from committing similar offences in the future. Introduction In Malaysia, the spread of Islam can be seen during establishment of Malacca Sultanate by Indian traders from Gujerat and Arabs from West Asia.

The Malacca Sultanate has made Islam as state religion and is applied alongside Malay customary law. Malacca has great system of law based on written codes; there are Hukum Kanun Melaka or Undang-Undang Melaka, Undang-Undang Laut Melaka and Risalut Hukum Melaka. Islamic criminal law was administered according to the Syariah law and the criminal offender shall be punished based on Islamic punishment. Civil whipping in Malaysia was introduced by British where during this time the criminal law applicable was English law.In contrast, the administration of Islam was left to the head of Malays communities and it only limited to family, religion and Muslim affairs.

After several years of British colonization, the applications and functions of Islam in the system plays are limited where according to Article 74 of the Federal Constitution and Second List in the Ninth Schedule, Islamic law is a matter failing within the state list, that is, it is a matter over which the State Legislature has jurisdiction and not the Federal Legislature.Thus, with regards to offences or Islamic Criminal Law, the Federal Constitution goes on to provide that the State Legislature may make laws for the creation and punishment of offences by person professing religion of Islam. Likewise, the State Legislature has jurisdiction over the constitution, organization and procedure of Syariah courts. [1] There are two types of whipping as punishment for criminal offenders that are firstly, civil whipping and secondly, Syariah whipping.With regard to civil whipping, the relevant procedure is under the Criminal Procedure Code (Act 593)—(Revised 1999) for offences under federal states and is applicable for both non Muslim and Muslim. This Act should be read together with the Prisons Regulations 2000.

[2] Furthermore, civil law limits the sentence of whipping for female offenders where Section 289 of Criminal Procedure Code expressly states that women offenders are exempted from whipping sentence.Nevertheless, the Syariah law of whipping is applicable for both male and female offenders. Several states such as Malacca, Johor, Selangor, Pahang and Federal Territories has its own Act in respect of whipping procedures.

With regard to the procedures of whipping, most of the states applied the same procedures of whipping but none of the Acts provide clear procedures of whipping sentence.Pursuant to this, the author will only refer to the Syariah Criminal Procedures Act (Federal Territories) 1997 as the main Act in order to highlight the existing procedures of Syariah whipping. Definition Whipping or its many alternatives terms; caning, flogging is one of the sentences provided for not only Syariah criminal offences but other offences under various structure. According to law dictionary whipping In Arabic word it can be called as Jalada means to strike with repeated strokes, as with a strap or rod also lash.There is no specific definition of whipping under relevant existing law in Malaysia such as Criminal Procedure Code (Act 593)—(Revised 1999), Penal Code (Act 574) (Revised—1997), Syariah Criminal Offences (Federal Territories) Act 1997, Syariah Criminal Procedure (Federal Territories) Act 1997 except the Whipping Procedure 1987 (Kelantan), where whipping means inflicting the offenders with cane by the officer appointed by Prison Department.

Despite the term of whipping, another connected term used for civil law is corporal punishment.According to Paul Leighton (2004,) from the Latin corpus or body refers to physical infliction and the punishments causing pain or disfigurement of body, as opposed to systems of punishments based on a deprivation of liberty by holding the body. [3] From these definitions it can be said that the execution of whipping sentence under civil law is different from Syariah whipping which is not suffer any cuts or bruises and shall not leave physical scars on the bodies of criminal offenders. Aims and purposes of whippingWhipping can be seen as cruel or harsh from the view of commoner. Ironically, from the legal perspective it may only be seen as a method of imposing criminal penalties. Decades ago, whipping was imposed to punish the wrongdoer. It was a form of retribution where the offender will be punished accordingly.

The law of “an eye for an eye” is usually called the law of retribution, or “lex talionis. ‘An eye for an eye and a tooth for a tooth’ refers to the concept of revenge, it literally means that if someone does something wrong to you, you will get compensated for the same losses.Historically, whipping has been used as a punishment in almost every religious and cultural setting, from Ancient China, Rome and Greece to Mayan and Indigenous American communities, to the Judeo-Christian and Islamic contexts. Whipping sentence was recognised by our beloved Prophet Muhammad,as narrated by Muslim that” Prophet was approached by one man who was drinking wine and he whipped the man with two palm fronds for forty lashes. [4] Whenever the wrongdoer is punished, society was called as the witnesses.Execution of punishment been made in the public area. Indirectly, whipping may prevent crimes and deter the phenomenon of crimes.

From the statistic, in average from the year of 2005, there were approximately 775 offenders have been whipped for the sum of 1700 strikes. [5] As decided in the case of Pendakwa Syarie v Hannani Binti Sabran,[6] Yang Amat Arif Tn Hj Mohamed was of the view that punishment imposed was appropriate and it is hoped that it will somehow be a lesson to be learnt by the public.Moreover, it was hoped that the wrongdoer will repent (‘taubat nasuha’) and ask the forgiveness from Allah and most importantly she will not repeat the sin again. Looking at the fact of the case, the offender was charged under Section 23 (2) Syariah Criminal Procedure (Federal Territories) Act 1997 ( after this shall be referred to SCPA), sexual intercourse out of the wedlock. Considering the impact on the future birth of an individual which will always be labeled as a child of out of the wedlock (‘anak luar nikah’), such punishment is just a fair and pertinent decisionThe Existing Whipping Procedures The Federal Constitution in the Ninth Schedule empowers the Syariah High Court to impose the punishment of whipping for Muslim offenders up to six strokes. Before any judgment in criminal case can be given against the offender, there are several procedures need to be observed. [7] At first instance, the Deputy of Syariah Public Prosecutor (after this referred to DSPP) must make an application to register the case at court so that the registrar shall review the application on whether the court has jurisdiction to hear the case or not.

Normally, the court shall approve the application if the offense committed by a person professing Islamic religion, the offence is within the jurisdiction of the court , the maximum punishment more than Ringgit Malaysia Three Thousand (RM3,000) or imprisonment more than two years and the entire relevant documents which relate to the case must be completed At first stage of trial, the interpreter shall read the charge to the accused and ensure the accused whether he/she understand the charge or not and he will be asked whether to plead guilty or asked to be tried.After the DSPP presented the fact of the case, the admission of the accused on the fact of the case shall be presented again. If the accused agreed with the charge and plead guilty, he will be convicted.

Besides that, the accused also is given an opportunity to appeal for a lighter sentence. The DSPP is allowed to cross examine the accused. Lastly, the judge shall grant judgment against the accused. If the accused does not plead guilty, the judge shall order the case to be tried with listening and cross to examination of the DSPP’s witness.After that, the accused is ordered by the judge to give the winding argument followed by the DSPP’s argument. If the court found that, the case is merits prima facie, the accused is ordered to defend himself by giving evidence.

Upon completion of the accused giving evidence, the judge shall orders the DSPP to give his final arguments followed by the argument of the accused. Lastly, the judge shall grant judgment whether the accused is guilty or not. If the accused is guilty, the judge shall pass the sentence relevant to charge and if the accused is not guilty, he will be acquitted and discharged.

Any aggrieved party may appeal to the Syariah Court of Appeal within fourteen (14) days. Furthermore, if the court were sentenced to whipping on the offender, the court will inform the Prison Department that the offender will be sent to Prison Department by the Officer of the Federal Territory of Islamic Affairs Department for further action. The Prison authorities will carry out the whipping sentence after they have received a warrant of Commitment on a Sentence Imprisonment or Fine from Syariah Court[8]After getting confirmation that no appeal is made by offender from court, the Prison Department shall specify the date for sentence of whipping.

Upon the date sentencing, the Director of Prison Department will call the offender to be examined by Government Medical Officer that the offender is fit for whipping. After getting confirmation from the medical officer, the prison officer will read the charge and the sentence imposed against the offender. After that, the whipping officer is called to carried out whipping sentence according to Syariah procedures with the instruction of Director Of Prison Department.In carrying Syariah whipping sentence, the prison authorities will refer to the SCPA and also the Standard of Operating Practice (SOP) in order to enlighten the unclear procedures of SCPA. The SCPA does not distinguish whipping procedure on male and female offenders except whipping of male shall be inflicted in a standing position and female in a sitting position. [9]The female offender shall sit on the stool provided by the Prison Department[10] and if female offender is pregnant, the execution shall be postponed until the end of two months after delivery r miscarriage. [11] Beside the procedures set forth above, the prison authorities should also observed the following procedures:- a) The Whipping Rod The whipping rod shall be the same type and made either from rattan or small branch of tree without segment or joint and its length not more than 1.

22 meters and its thickness not more than 1. 25 centimeters. All states which implementing whipping sentence have equal length and thick of whipping rod. [12] b) Whipping Officer The person appointed to execute the sentence shall be an “adil” and mature person. 13] This section is quite subjective and too general because it difficult to measure an adil person. Therefore, the prison authorities handed the matter to the Director of the Prison to select who is “adil” to execute whipping sentence.

With regard to Women Whipping Officers, Prison Department has trained their women officers to be whipping officer since 2005 and during that time they have two women whipping officers and now they have nearly thirty (30) women whipping officers. Before can be appointed as whipping officer, an officer must pass training carried out for three months at Centre of Jail Officer Training.Then she must attend another special training for five days.

After that, she has to sit for another test where during this test she has to demonstrate the sentence of whipping. If the officer succeeded in the test, she will receive a letter of appointment as a qualified whipping officer and she will received an allowance RM10 per whip. [14] c) Method of execution of sentence of whipping The officer shall use the whipping rod with average force without lifting her hand over her head so that the offender’s skin is not cut and after inflicting a stroke, she shall lift the rod upward and not pull it.This whipping may be inflicted on all parts of body except the face, head, stomach, chest or private parts. [15] Prison Department has reviewed the above matter and agreed that, the whipping shall be inflicted on the back and if the offender has been sentenced to more than one strokes, the subsequent strokes must not be inflicted on the same place as the first stroke to prevent from any wound. The infliction of whipping strength shall differ according to whipping officer and if the officer negligently cause wound to the offender, such officer shall be liable for disciplinary action. ) Clothes With regard to clothes, female offenders shall wear clothes according to Islamic Law. [16] The section does silence on types of clothes thus, the Director of Woman Prison is given a discretionary power to determine the types of clothing should be worn as long as it permitted under Islamic Law indeed the clothes must not cause any possibility of wound to the female offenders.

Moreover, the Prison Department has also provided a “sport bra” which is backless and strapless. So that it may avoid any minor wound caused by a hook attach to normal bra. ) Time of Executing Sentence of Whipping if the accused is sentenced to whipping in addition to imprisonment, the whipping shall not be inflicted if the offender appeals the sentence and it shall only be inflicted if the Court of Appeal has confirmed the sentence[17] f) Place The execution of whipping shall be performed in such place as the court may direct or in a place fixed by the government[18] Syariah Court Cases Involving Whipping Sentence Against Women Offenders At the end of 2009, Judge of the Syariah Court has imposed sentence of whipping for some women offenders.The first case is in 12th December, 2009 where the Syariah Court of Pahang has imposed whipping sentence to fine of RM5000, imprisonment for 3 years if unable to pay the fine and six strokes to Noorazah Binti Baharuddin for consuming intoxicating beer .

In this case, the accused was convicted under section 136 under the Administration of Islamic Religious and Malay Custom of Pahang Enactment 1987. The accused filed an appeal at the syariah Appeal Court and now the decision is still pending. [19] Following that is the case of Deputy of Public Prosecutor (DPP) vs.Kartika Seri Dewi Binti Sukarno[20] where In this case the accused was convicted for drinking intoxicating beer under section 136 under the Administration of Islamic Religious and Malay Custom of Pahang Enactment 1987 and the Syariah Court of Pahang has imposed fine of RM5000 and imprisonment if the accused fail to pay the fine and six (6) strokes.

The accused accepted the sentence without further appeal and the sentence shall be carried in public. This case has brought a lot of controversial issues and criticism amongst those who have not very clear on Syariah law.Many outraged opinions on the severity of the Syariah punishment. At last after a delay of execution until August, 2010, the King of Pahang has granted a pardon to the accused and her sentenced was commuted to a community service at a children’s home in Kuantan for three weeks. Furthermore, there are also cases where the court has sentenced to whipping and the Prison Department has executed the sentence of whipping against all offenders. There are firstly,, DPP vs.

Suziela Binti Ab Rahman[21]. The accused has been sentenced to 6 strokes and 30 days imprisonment.Secondly, the case of DPP vs. Rozimah Binti Mohd Yusof[22] where the accused has been sentenced to 4 strokes, 2 months imprisonment and fine with RM1000 if unable to pay the accused shall be imprisonment for 1 month. Thirdly, the case of DPP vs. Siti Murini Binti Mostafa[23] where in this case the accused has been sentenced by the Syariah Court to 5 strokes, 6 months imprisonment and fine for RM1000 and if unable to pay shall be imprisonment for 3 months. The accused tried to appeal but unfortunately, the court rejected the appeal.

Despite the above cases, there are also cases that have been sentenced to whipping by the Syariah Court Of Federal Territories. However, the sentence was not carried out since these cases were still at the stage of appeal. First case is, DPP vs. Nor Adilla Binti Hassan[24]and secondly, the case of DPP vs.

Hannani Binti Sabran[25]. The accused of these two cases have been convicted under section section 23(2) of the Syariah Criminal Offences (Federal Territories) 1997 (Act 559) sexual intercourse out of wedlock.Nor Adilla Binti Hassan was sentenced to 3 strokes, 3 months imprisonment and fine with RM1000 and if unable to pay shall be imprisonment for 3 months where as Hannani Binti Sabran was sentenced to 3 strokes, 2 months imprisonment and fine with RM1000 if unable to pay shall be imprisonment for 1 month. Furthermore, power of the judge to pass sentence of whipping is not absolute. This is because there are cases where a judge has sentenced strokes however, the cases need to be reviewed and now the judgment of these cases are still pending until the decision for revision is granted.The cases are first, DPP vs Nor Evva Reena Binti Hashim[26] where the court at first trial has sentenced the accused to 6 strokes and 3 days imprisonment. Second, the case of DPP vs.

Suraya Binti Ahmad[27] [14600-142-0022-2009] where in this case the sentence were 6 strokes and 3 days imprisonment. The comparison of procedures of whipping sentence between Malaysian Syariah Criminal Procedures and other Islamic Countries. Another objective of this research is to make comparison between the existing procedures of Syariah whipping in Malaysia with Pakistan, Iran and Acheh. ) The Law ———————– [1] Ahmad, S. S. (2007).

Malaysian Legal Syatem. Malaysia: LexisNexis. [2] Islamil, S. Z. (2006).

Wooing Whipping Sentence for Shariah Offenders: Situating the Difference, Encouraging teh Execution. Shariah Law Report , 35-41. [3] leighton, P. (2004,). Corporal Punishment. 1-6 [4] Sohih Muslim, mp 1706, jil 11, 216 [5] Mohamad, M. (2009).

Peranan Institusi Penjara dalam Pelaksanaan Hukuman Sebat bagi kes Jenayah Syariah : Satu Pandangan. Syariah Whipping Punishment for Criminal Offences (pp. 1-21). Kuala Lumpur: JAKIM. 6] (14700-142-0070-2009) [7] Malaysia, S.

C. (n. d.

). High Court. Retrieved August 4, 2011, from e-Syariah: http://www. mswp. gov. my/main. php and Interview with Juhaida Binti Omar, Assistant of Syarie Officer Court of Federal Territories.

Julai. 2010 [8] Ismail, S. Z. (2004). Pengalaman Negeri Kelantan Dalam Melaksanakan Hukuman Sebat Rotan Terhadap Kesalahan Syariah. Jurnal Syariah, 12:1 , 101-110 [9] Section 125(3)(i) of SCPA [10] Yuhanza othman, E. K.

(2011, July). Procedures of whipping for Female Offenders. (M. Mohammad, Interviewer) [11] Section 125 (3)(b) of SCPA 12] Section 125(2) of SCPA [13] Section 125(3)(d) of SCPA [14] Yuhanza othman, E. K. (2011, July).

Procedures of whipping for Female Offenders. (M. Mohammad, Interviewer) [15] Section 125(3) (e) and (f) of SCPA [16] Section 125(3)(h) of SCPA [17] Section 126 of SCPA [18] [19] Deputy of Public Prosecutor vs Norazah binti Baharuddin (bil.

06100-139-0006-2008) [20] [21] (1400-142-0004-2010) [22] (14700-142-0013-2009) [23] (14700-142-0064-2009) [24] (14700-142-0068-2009) [25] (14700-142-0070-2009) [26] (14600-142-0012-2010) [27] (14600-142-0022-2009)