KUALA LUMPUR (Dec 27): On Nov 20, the Kuala Terengganu Shariah High Court handed down the sentence of six lashes in public for repeated offences of khalwat (close proximity) against a carpenter named Mohd Affendi Awan.
The sentence was meted out after Affendi elected to plead guilty to repeated khalwat offences under Section 31(a) of the Shariah Criminal Offences (Takzir) (Terengganu) Enactment Amendment 2022.
The punishment has, however, solicited knee-jerk reactions by many, as the sentence will be carried out at Masjid Al-Muktafi Billah Shah in Kuala Terengganu.
In its press statement, the Malaysian Human Rights Commission (Suhakam) — while taking note that whipping under shariah laws is different from whipping under civil law — argued that in imposing public whipping, the Terengganu Shariah Court has exceeded its jurisdiction which is conferred by federal law, namely the Shariah Courts (Criminal Jurisdiction) Act 1965 (Act 355).
Suhakam also contended that Act 355 only permits whipping, but not public whipping.
It also averred that 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.
Suhakam is of the view that Section 125(3)(c) of the Terengganu Shariah Criminal Procedure Enactment 2001 is ultra vires [going beyond the powers conferred by] Act 355.
Under the existing criminal legal system, the sentence of whipping is duly recognised as a form of punishment, either under the civil law or shariah laws. Be that as it may, the imposition of whipping is perfectly legal under both systems, as long as the relevant penal section allows the courts to do so.
The residual issue is whether a public whipping is duly envisaged under both civil law and shariah laws. Apparently, the view differs.
Though the word “public” is apparently missing from the word “whipping” in Act 355, the proponents of such a public whipping claim that the punishment is not sensu stricto [in the strictest sense] prohibited by Act 355, because such a sentence is merely one of the forms of whipping.
In other words, the execution of whipping may be carried out either in a designated private place, or in a designated public arena, provided that there must be a direction to that effect by the trial judge.
Ergo, this school of thought totally rejects the restrictive and pedantic interpretation of the word “whipping” employed by Suhakam.
This school of thought also believes that Section 125(3)(c) of the Terengganu Shariah Criminal Procedure Enactment 2001 is akin to Section 286 of the Criminal Procedure Code of Malaysia, which states that when an accused is sentenced to whipping, the court will direct the time and place for the execution of the sentence.
Granted that under the civil law, the execution of whipping is not carried out in public places. This is because the whole philosophy of whipping under Islamic law and civil law is totally different. In fact, Suhakam duly acknowledges such differences.
Under civil law, whipping is inflicted to the convicted offender for the sole purpose of causing pain and agony to him. Such a punishment is primarily designed to deter the offender only. Therefore, public whipping is understandably unnecessary.
In contrast, the sentence of whipping under Islamic law ought to be publicly administered. The objectives of such a punishment are manifold.
One of them is to educate the public. Hence, according to this school of thought, it would defeat the purpose if the punishment is not carried out in public. Of course, the element of deterrence would be factored in as well; but not through an infliction of pain and agony to the offender, but rather by publicly shaming him.
Thus, it is crystal clear from the get-go that the point of departure for these two laws is not the same.
Suhakam also raises the issue that the public whipping constitutes cruel, inhuman and degrading treatment.
With due respect, it would be highly unfair for Suhakam to conclude that public whipping constitutes cruel, inhuman, and degrading treatment. By making such a sweeping statement, bereft of cogent evidence, it seems to utterly disrespect other jurisprudence which prefers to have different sets of laws for certain crimes.
Suhakam seems to embrace the universalistic conception of human rights, which is often described as the so-called “Western” model. This model has been accused of advocating an individualistic approach to rights that prioritises the individual’s rights against society.
Universalism believes that the fundamental values and principles highlighting the concept of human rights are of universal character. Every human being is, therefore, entitled to be protected from any human rights infringement.
By contrast, the "Non-Western values” approach emphasises social stability, privileging community and duty over the rights of the individual.
Relativism, being a long-standing rival of universalism, is normally characterised as a set of views about the connection between morality and culture or humanity. In essence, cultural relativism is based on morals, ethics, and customs of each human society.
The idea of relativism challenges universalism and the intent of the declaration. Hence, the relativist believes that beliefs, values and therefore rights are a product of culture. They vary. And they differ from culture to culture or place to place. Relativists hold the view that there is no such thing as "one size fits all" in so far as human rights are concerned.
Mohamed Hanipa Maidin is a former deputy minister of law.