Caning: Shariah and Civil law perspectives. Ramizah Wan Muhammad and Nasimah Hussin. Introduction

Transcription

1 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

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 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 Ibn Farhun, Tabsirat al-hukkam, vol.ii, p.217.

3 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 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. False doctrines 2. Incest 3. Tarnishing the mosques or any worship places 4. Prostitution 5. Ilegal sexual and attempts to have sexual intercourse 6. Liwat 7. Drinking liquor or intoxicants 8. Lesbianism 9. 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 Al-Kasani, Bada al-sana i, vol.vii, p.64.

4 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 Hence the punishment has to be executed at the prison or any other place expressed in section 3 of the Prison Act 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 p New Straits Times, July 26, Section 3 of the Prison Act ( act 537)

5 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 Kelantan on the other hand has its own Rules on Caning Punishment 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 Rule 133.

6 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. Rape cases 2. Criminal breach of trust 3. Juvenile cases 4. The prisoners who have violated the Prison Regulations Robbery 6. 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

7 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.