A very kind and polite reader of my article, "The Legality of Caning Kartika" posted a comment which I would like to reproduce in verbatim below:
Syariah law does provide the procedure for caning - Mohd Hafiz Hassan (Taken from The Malaysian Insider)
AUG 27 – I agree with Dina Zaman (“Kartika’s legacy to Malaysia”) that there is a marked difference between caning under Syariah law and our Civil law.
I also agree with the statement attributed to Azhar Harun (aka the columnist-blogger Art Harun) that under “civil law, women cannot be subjected caning as a punishment for any offence.” Section 289 of the Criminal Procedure Code (CPC) expressly provides that no female shall be punishable with whipping.
However, I beg to differ that there is no procedural guideline as to how caning is to be carried out under Syariah law. On the contrary law, Syariah law in Malaysia makes provision for the carrying out of the sentence of whipping.
The law is to be found in the state enactments on Syariah Criminal Procedure.
I shall refer to section 125 of the Syariah Criminal Procedure (Federal Territories) Act 1997. Similar provisions are to be found in the state enactments.
Subsection 2 provides that the whipping rod, excluding its holder, shall be of the same type and made either from rattan or small branch of a tree without segment or joint and its length not more than 1.22 metres and its thickness not more than 1.25 centimetres.
On the carrying out of the sentence, subsection 3 makes it mandatory that:
(a) before execution of the sentence, the offender shall be examined by a Government Medical Officer to certify that the offender is in a fit state of health to undergo the sentence;
(b) if the offender is pregnant, the execution shall be postponed until the end of two months after delivery or miscarriage, as the case may be;
(c) the sentence shall be executed before a Government Medical Officer in such place as the Court may direct or in a place fixed by the Government for the purpose;
(d) the person appointed to execute the sentence shall be an “adil” and mature person;
(e) the person shall use the whipping rod with average force without lifting his hand over his head so that the offender’s skin is not cut;
(f) after inflicting a stroke, he shall lift the rod upward and not pull it;
(g) whipping may be inflicted on all parts of the body except the face, head, stomach, chest or private parts;
(h) the offender shall wear clothes according to Hukum Syarak;
(i) if the offender is a male, the whipping shall be inflicted in a standing position, and if a female, a sitting position;
(j) during the execution of the whipping the Government Medical Officer certifies that the offender can no longer receive the strokes, the whipping shell be postponed until the Medical Officer certifies that the offender is fit to undergo the balance of the sentence.
So, it is erroneous to say that “when Kartika was sentenced to be caned, she had to be caned in accordance with our civil law.”
On another issue of controversy, that is, the so-called remand order for a week in prison to facilitate the caning, I refer to subsection 4 of the same provision.
It provides that in the case where the offender is sentenced to whipping only, then he shall be dealt with as if he is sentenced to imprisonment until the sentence is executed.
It appears therefore that the warrant to detain Kartika, which the state Syariah prosecutors have clarified to be the nature of the order, is lawful.
Be that as it may, the legality of the whipping sentence on Kartika perhaps lies in its inconsistency with section 289 of the CPC. This provision is not only “civil’ law but a federal law.
On the other hand, the law under which Kartika was convicted and sentenced is state law.
Article 75 of the Federal Constitution provides that if any state law is inconsistent with a federal law, the federal law shall prevail and the state law shall, to the extent of the inconsistency, be void.
It is arguable, therefore, that a sentence passed under a state law cannot be inconsistent with provisions of a federal law.
* Mohamad Hafiz Hassan is a reader of The Malaysian Insider.
I did further research and it would appear that he was right and I was wrong on the fact that Syariah law in Pahang does in fact provide for the procedure on how the caning is to be carried out. It is contained in section 125 of the Enakmen Tatacara Jenayah Syariah 2002 .
I must admit that I totally missed out the said enactment while doing my research. I apologise for the mistake.
Thank you for the kind reader who posted the comment and to Encik Mohamad Hafiz Hassan who had kindly pointed that out on the Malaysian Insider.