Caning: Shariah and Civil law perspectives
By
Ramizah Wan Muhammad and Nasimah Hussin
Introduction
Islamic criminal law consists of Hadd, Qisas and Ta’zir crimes as well as punishments. Hadd
(plural: hudud) signifies an unchangeable punishment prescribed by Divine law which is
considered the right of God. In the penal context, prescribed punishment means that both the
quantity and the quality thereof are determined and that it does not admit of degree. What is
meant by its being prescribed as the right of God is that it is prescribed for the public interest
(maslahah ‘ammah) and individuals as well as the community cannot annul it. It means that
whenever a hadd crime is established on the offender the judge has no choice other than to
punish him with a hadd punishment prescribed for it. According to the majority of the jurists,
hudud crimes are zina (unlawful sexual intercourse), theft, qazaf (false accusation of zina),
drinking intoxicants, hirabah (highway robbery), baghy (rebellion) and riddah (apostasy).
Among the hudud punishments are amputation of hands, dealth penalty and caning.
Qisas is for crimes involving the taking of life or the causing of bodily harm which are
punishable by retaliation or blood money (diyat), both being fixed in the Shari‘ah texts. Unlike
hudud, qisas is imposed as the right of individuals (haqq al‘ibad) and, accordingly, the victim or
his relatives have the right to forgive or reduce the penalty of the accused person.
While ta‘zir (plural: ta‘azir or ta‘zirat) is a crime punishable with penalties that are
discretionary, i.e. it is left to the discretion of the judge to determine the suitable punishment to
be imposed on the offender. It consists of all kinds of transgression where no specific and fixed
punishment is prescribed. The Shari‘ah gives the ruler or the court considerable discretion in the
infliction of ta‘zir punishments, which range in gravity from a warning to death. Caning is
considered as a main ta‘zir punishment.
Caning in Islamic Law
Caning is a common punishment in Islamic criminal law. It has been prescribed in the three
hudud punishments; zina (illicit sexual intercourse), false allegation of zina (qazaf) and drinking
wine. For the crime of zina, the criminal will be punished with 100 lashes by virtue of surah al
Nur verse 2 of the Holy Quran.
The woman and the man guilty of fornication, whip each of them with a hundred stripes.1
For the crime of false allegation of zina, the punishment for the slanderer is to be caned with
eighty lashes as provided in surah al Nur verse 4 to 5.
1
Qur’an, 24:2
And those who launch a charge against chaste woman, and produce not four witnesses (to
support their allegation), whip them with eighty stripes.2
It is also the recognised hadd punishment for drinking intoxicants based on the tradition of the
Prophet who commanded the Muslims during his lifetime to whip a person who drank
intoxicants. This practice was then acted upon by the caliphs and the Muslims.3
Whipping is also recognised as the main punishment in the case of ta‘zir crimes based on the
Qur’an and the Sunnah of the Prophet.
i. Qur’an:
As to those women on whose part ye fear disloyalty and ill-conduct, admonish them
(first), (next), refuse to share their beds, (and lastly) beat them (lightly).4
According to the above Qur’anic text, beating is considered as one of the punishments of nushuz
(disloyalty to one's husband). Since nushuz is a ma‘siyah (religious disobedience), the beating
which is mentioned in the above text is considered as a ta‘zir punishment, and beating is a type
of whipping.5
ii. Sunnah:
Abu Burda reported that he heard the Prophet says: Nobody can be whipped more than
ten lashes except in the case of a hadd.6
Regarding the above hadith text, Ibn Farhun holds that it is a clear proof of ta‘zir.7
2
Qur’an, 24:4
3
See: Ibn al-Humam, Sharh Fath al-Qadir, vol.v, p.295, Malik b. Anas, al-Mudawwana al-Kubra, vol.xvi, p.261.
4
Qur’an, 4:34
5
See: Bahnasi, al- ‘Uquba Fi al-Fiqh al-Islami, p.186. According to him, the term Darb (beating) is used while
dealing with ta‘zir instead of jald (whipping) which is used while dealing with hadd punishments.
6
Abu Dawud, Sunan, vol.iv, p.167.
7
Ibn Farhun, Tabsirat al-Hukkam, vol.ii, p.217.
It is also reported that the Prophet inflicted one hundred lashes on a husband who had had
sexual intercourse with his wife's slave with her permission.8
In another hadith, the Prophet says:
Teach your child prayer at the age of seven, and beat him if he fails to do so at the age of
ten.9
All the above hadith texts indicate the legality of ta‘zir punishment by whipping.
.
Caning In Malaysian Syariah Court
Caning is one of the punishments provided in the Malaysian Syariah laws by virtue of the
Syariah Courts( Criminal Jurisdiction ) act 1965. Section 2 of the Act had stated the limited the
power of the Syariah Court in criminal jurisdiction to imprisonment for a term not exceeding 3
years, fine not exceeding RM 5000 and whipping not exceeding 6 strokes.
The Syariah criminal offences that carries whipping as a form of punishment are as follows:
1.
2.
3.
4.
5.
6.
7.
8.
9.
False doctrines
Incest
Tarnishing the mosques or any worship places
Prostitution
Ilegal sexual and attempts to have sexual intercourse
Liwat
Drinking liquor or intoxicants
Lesbianism
Muncikari
However, the crime varies from one state to another in punishing the offender. Such as in
Malacca, the crime that carries whipping as a form of punishment is only available in sexual
intercourse against the nature. (section 58 of Syariah criminal offences 1991).Other than that
crime, whipping is not prescribed. In Perlis, the only crime that carries whipping as a form of
punishment is drinking liquor (section 24 of Syariah Criminal offenses 1991). In Selangor, there
8
Al-Shawkani, Nayl al-Awtar, vol.vii, p.290.
9
Al-Kasani, Bada’ al-Sana’i, vol.vii, p.64.
are 6 criminal offences that prescribe caning as a punishment to the convicts; incest, prostitution,
muncikari, illegal sexual intercourse, preparatory acts towards illegal sexual intercourse and
sexual intercourse against the nature.
Caning or Whipping?
By virtue of Syariah Criminal Court Jurisdictions 1965, the term used is whipping. Whipping can
be categorized as a punishment for those who are found guilty of violating criminal offences
only. On the other hand, caning is lighter than whipping and it is normally incur to those who
have violated any school discipline.10
However in the holy Quran, Allah used the term Flogging (jald) which is a common punishment
in Islamic law, prescribed both as a hadd ( divinely sanctioned) and as a ta’zir penalty (at the
judge's discretion. The Arabic term jald is from the root jalada, meaning to flog, whip or lash
and it appears in the in the form of a command against the culprits (ijlidu) at al-Qur’an 24:2 and
ijliduhum at al-Qur’an, 24:4. Flogging is the hadd punishment prescribed in the Qur’an for the
crimes of fornication (zinā) and false accusation of fornication (qadhf).
The author believes that the term “whipping” is inaccurate to be used in prescribing the nature of
whipping punishment in the context of Malaysian Syariah Court due to the nature and mode of
punishment inflicted is different to the civil’s punishment. According to “Mr Wahid” (not his
real name) who metes out 100 strokes every week as a Whipping officer, “ Syariah whipping
(caning) is more like caning naughty schoolboys. In Syariah the punishment is not in the force of
whipping but to bring shame.11 Hence, the word whipping is more severe in terms of the impact
of the punishment compared to the word caning to describe the punishment meted out at the
syariah court level.
Procedure before caning is executed
The whipping or caning punishments are governed by the Prison Act 1995. Hence the
punishment has to be executed at the prison or any other place expressed in section 3 of the
Prison Act 1995. The place can include building, enclosure or any place declared by the Minister
of Home Affairs by notification in the Gazette.12 The punishments granted by the Malaysian
syariah coutt judges have to follow the procedure set out in the Prison Act. However, one has to
10 Macmillan English Dictionary For Advanced Learners.,Oxford. 2002. p.198
11 New Straits Times, July 26, 2009.
12 Section 3 of the Prison Act 1995. ( act 537)
take note that Syariah court is a creature of the List 2, 9 th schedule of the Federal Constitution of
Malaysia which means that the status of Syariah court is the state court. Hence, Syariah court’s
decisions should be respected as an independent judicial institution in Malaysia just like the civil
courts.
By virtue of section 286 of the Criminal Procedure Code (CPC), woman is exempted to be
whipped together with a man who is more than 50 years old and a convict who is sentenced to
death punishment. However, the above Code however,does not apply to the syariah court in
Malaysia. Syariah Court has its own Syariah Criminal Procedure Enactment in each respective
state.In the Malaysian syariah courts there is no difference between male and female convicts.
Both will equally be punished as prescribed by shara’.
In the CPC it also provides that prior to the infliction of whipping there is a need to have a
Medical officer to present at the time of the execution and to certify him fit to receive the
punishment.13 The prisoners are subject to the Prisons Regulations 2000 which says that the
presence of Medical officer in charge is necessary at the time of execution.14 The presence of
medical officer is needed to ensure that the convicts are fit enough to receive the punishments
and there will be no fatalities caused to them should they receive the caning punishment.
In Malaysia, Kelantan Syariah court is the only state which actually implemented and executed
the convicts with whipping since May 1987. Kelantan on the other hand has its own Rules on
Caning Punishment 1987. By virtue of the above rule the size of the rattan must be 1 metre long
and 1 centimeter of diameter as opposed to the civil caning which is 1.25 diameters. This shows
that the rattan used in the civil caning is heavier than in syariah’s.
In section 125 of the Selangor Syariah Criminal Procedure Enactment 2003 has provided the
methods on how to execute the caning punishment to the syariah criminal offenders. Among
other things that are provided in this section are as follows:
1. The nature, diametre and length of rattan
2. Prior to the execution, the offender must be examined by the medical practictioner
3. If the offender is pregnant, the punishment should be adjourned after two months of her
delivery.
4. The execution must take place in front of the medical practitioner
5. The caning officer must be an upright and matured person
6. The caning must not concentrate on one place but can be in various places in the body
except in his face, private parts, stomach and chest.
7. The offender must wear a proper attire that covers his/her aurah.
13 Section 290 of the CPC 1999.
14 Rule 133.
8. The caning officer must not swing the rattan in full force in the course of caning the
offender instead he delivers his punishment with “limp wrist” without raising his hand
above his head.
9. If the offender is found to be unfit such as due to the age, illness or any other reasons
cited by the court as reasonable then the caning punishment has to be substituted with
other punishments.
Section 126 has provided that the caning punishment cannot be executed if the offender has
appealed the case until the decision is of the subordinate court is confirmed.
A comparative analysis between Civil and Syariah system.
Among the crimes where caning can be imposed in the civil system are as follows:
1.
2.
3.
4.
5.
6.
Rape cases
Criminal breach of trust
Juvenile cases
The prisoners who have violated the Prison Regulations 2000.
Robbery
Drugs related cases
The diameter of rattan used is 1.25 for civil system and and it is longer than the rattan used for syariah
criminal offenders. The rattan used for syariah system is 1 metre long but the length of rattan for civil
system is 1.09 metre. The civil offenders will be placed in the tripod with no clothes on except to cover
his private parts. However, for Syariah criminal offenders, they will be asked to stand for man offenders
and to be in a sitting position for female offenders. Both offenders will be asked to wear a proper clothes
to protect their body.
In a civil system, female is exempted to receive any corporal punishment by virtue of the above
Regulations.But in syariah system, female and male, are no different in terms of receiving caning
punishment.
The syariah criminal offenders will be executed by the Muslim Caning Officer from the the Prison
Department. But in the civil system the convicts will be punished by any officer appointed by the General
Commissioner of the Prison department.
In syariah system, the caning officer is not allowed to lift the rattan beyond his head and to pull back the
rattan to create a strong momentum as soon as it touches the body of the offender. However, in the civil
system, this is the method that they are adopting in which the injury caused is very severe.
In the course of executing the syariah corporal punishment, there is a need to have four witnesses to
witness the execution. However, in the civil system, a witness is not necessary.
Conclusion
It is indeed there a lot of differences between syariah and civil system in terms of executing the caning
punishments. If one to adopt the syariah system, it would help in achieving the objective of the
punishment instead of injuring his body in which some of the injuries leave a permanent scar or would
affect his ability to walk or to certain extent, will injure his private part and his manhood. One could say,
that punishment in Islamic criminal law is barbaric or inhumane until one could see the difference in
implementing it. The purpose of Islamic caning is to shame the offenders for violating the laws and the
rights of Allah or individual. It is not intended to cause pain to the offender that will hinder them to lead a
normal life. At the same time to deter the offender not to repeat the crime and serve as a lesson to the
public.