KUALA LUMPUR (Dec 27): The Human Rights Commission of Malaysia (Suhakam) expresses its deep concern over the decision of the Terengganu Shariah Court in the case of Mohd Affendi Awang, a 42-year-old carpenter, who was sentenced to six lashes in public, after being convicted of repeated khalwat (close proximity) offences under Section 31(a) of the Shariah Criminal Offences (Takzir) (Terengganu) Enactment 2022. This punishment undermines human rights, dignity, and the rule of law. The commission takes note that whipping under shariah laws is different from civil law. Be that as it may, the sentence not only constitutes cruel, inhuman, and degrading treatment, but also raises serious questions regarding the legality of public whipping under the Federal Constitution and federal law.

Public whipping is an affront to human dignity and violates a basic principle enshrined in both international law and the Federal Constitution of Malaysia. Article 5 of the Constitution guarantees the right to life and personal liberty, which the courts have affirmed includes the right to live with dignity (Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan [1996] 1 MLJ 261).

The public execution of such a punishment exacerbates its degrading nature, subjecting the individual to humiliation, anguish, and shame. Such practice is not only inconsistent with human rights standards, but it also dehumanises the individual and perpetuates a cycle of stigma, rather than focusing on rehabilitation.

Suhakam is of the view that the Terengganu Shariah Court, in imposing public whipping, exceeds its jurisdiction as conferred by federal law, namely the Shariah Courts (Criminal Jurisdiction) Act 1965 (Act 355), which only permits whipping, and not public whipping.

Section 125(3)(c) of the Terengganu Shariah Criminal Procedure Enactment 2001, which permits the Shariah Court to direct the place of whipping to be before the public, is not envisaged by Act 355. The commission is of the view that directing whipping before the public renders the punishment in excess of, or ultra vires to, Act 355, as well as to be in violation of the jurisdictional limitation imposed by Item 1 of the State List of the Federal Constitution.

Punishments that inflict physical violence and public humiliation have no place in a modern justice system. They undermine Malaysia’s commitments to human rights, tarnish its legal integrity, and erode the dignity of individuals — a value upheld by all religions, including Islam.

Suhakam is steadfast in advocating for the abolishment of corporal punishments, regardless of whether they are imposed by judicial authorities or by educational authorities.

It is high time that Malaysia becomes a party to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), as many other Muslim-majority countries have already ratified or acceded to this convention.

We respectfully call upon the relevant authorities to reconsider the implementation of public whipping, and instead to respect and uphold the Federal Constitution, federal laws, and human rights. We must endeavour to abolish practices that violate human dignity, and to focus instead on rehabilitative justice.

Judicial punishments must never be carried out at the cost of human dignity. Public whipping, regardless of whichever authority that imposes it, constitutes cruel and degrading treatment, and has no place in a society that values justice, compassion, and the rule of law.

Suhakam is the national human rights institution of Malaysia.

Read also:
Man publicly whipped in Terengganu for Islamic crime of close proximity
Shariah whipping in public — does it exceed the Shariah Courts’ jurisdiction?