KUALA LUMPUR, Sep 6 – Putrajaya is not completely helpless in preventing any future incidence of caning for offences under Syariah law at the state level, say lawyers.
In a Malay Mail report today, senior civil and Shariah lawyer Nizam Bashir said the federal government can amend the Shariah Courts (Criminal Jurisdiction) Act 1965 to remove whipping as a sentence.
Speaking about the punishment meted out to two women over “same-sex relations” at the Kuala Terengganu Syariah High Court, Nizam agreed that Islamic law falls under state jurisdiction but disagreed with Pakatan Harapan leaders who claimed to be helpless in having any remedy for the situation.
“The federal government’s hands are not tied. They can always amend Section 2 of the Shariah Courts (Criminal Jurisdiction) Act 1965, and remove whipping as a sentence which the Shariah Courts are entitled to mete out,” he told Malay Mail.
Section 2 limits punishments by Shariah courts to three years’ jail, six strokes of the cane, and RM5,000 fines.
Nizam also took issue with activists and civil society groups for their ignorance in comparing punishments and actions under Syariah law with that of civil law.
This followed criticism that the two women had not been jailed, and only caned, which according to many observers is wrong.
“One cannot equate legal provisions stipulated under Syariah law with those under civil law and vice versa, or enforce the latter against the former.
“There are some quarters who subscribe to the view that caning can only be done in prisons pursuant to Rule 132 of the Prison Regulations 2000, and there is potent force in their argument, as there are no Shariah prisons or Syariah prison officers. Consequently, caning or whipping can only be done in a federal prison.
“That aside, dealing with views of rights groups who say that caning also violates the Procedure Code, I don’t think they would be correct in their view as the civil version of the CPC does not apply to Syariah criminal offences,” Nizam was quoted as saying.
Constitutional lawyer Syahredzan Johan concurred with Nizam, adding that provisions in the Prisons Act, Prison Regulations, and the CPC do not apply to caning under Syariah law.
“For example, Regulations 131 and 132 on corporal punishment in the Prisons Regulations 2000, often cited to say that caning can only be carried out in prisons actually refers to corporal punishment for offences under the Regulations themselves, and not all caning punishments.
“As for the CPC, Chapter 27, which contains provisions relating to whipping, refer to whipping sentences carried out by the criminal courts, not the Shariah courts. I am of the opinion that these laws cannot be relied on when discussing the legality of the caning by the Terengganu Shariah courts,” Syahredzan told Malay Mail.
Putrajaya not entirely helpless
He also agreed with the view that Putrajaya was not entirely helpless on the matter and just needed to amend the Syariah Court Act.
“If the federal government amends the Syariah Court Act and takes away the power of the Shariah court to mete out the sentence of caning.
“Meaning, caning cannot be done by any Syariah Court at all. But that is too drastic, and I doubt anyone has the political will to do that,” he was quoted as saying.
Last Monday, the two women, aged 32 and 22, were caned in the presence of about 150 people in the courtroom after it was read out by Syariah High Court Judge Kamalurazmi Ismail.
State Syariah chief judge Wan Mohd Zakri Wan Mohd and state senior syariah judge Rosdi Harun were also present when two female officers from the Kajang Women’s prison carried out the sentence in turns.
Also in attendance were state exco chairman of Syariah implementation, education and higher education Satiful Bahri Mamat, Kuala Terengganu MP Ahmad Amzad Hashim. Terengganu State Assembly Speaker Yahaya Ali, members of the Terengganu Syariah Lawyers Association and the state Bar Council.
Can be deemed unconstitutional
NMT asked two senior lawyers, Datuk Seri Rajan Navaratnam and Dato’ David Gurupatham and both are of the opinions that caning women can be deemed unconstitutional.
Section 8 of the Federal Constitution provides for equality before the law, and the constitution is supreme. Section 289 of the Criminal Procedure Code states that women cannot be caned. This is in conflict with the Shariah state enactment. Such conflict should be read in light of the constitution and the benefit given to the accused.
The Federal court recently on a landmark case, made it clear in Indira Ghandi case that the federal court has the power to strike out a Syariah provision that is deemed unconstitutional. This is because “it cannot be said that Muslim’s do not have the protection of Article 8 of the Federal Constitution.” David further clarified.
“The Federal Constitution applies to all irrespective of race and religion. Are we now saying that Muslims are not protected under Article 8?” asked Rajan.