BERITA DAILY LETTER: From Eric Paulsen, via e-mail
Lawyers for Liberty view with extreme concern the amendments to the Shariah Criminal Procedure Enactment 2002 that were passed by the Kelantan state assembly yesterday, thus allowing for caning to be carried out in public for certain syariah offences – zina, false accusation of zina, sodomy and alcohol consumption. Previously, caning can only be done in prisons.
Caning while technically legal as a form of punishment in Malaysia, constitutes torture, cruel, inhuman and degrading punishment under international human rights law.
Caning should certainly not be carried out in public as it will then become a spectacle that will attract the press and large cheering crowds (for example in Aceh), where people can photograph and video the event, thus aggravating the punishment and humiliation.
Is this the sort of behaviour the Kelantan government wish to inculcate among its people – for them to cheer, revel, broadcast and increase the public humiliation of others?
Although caning as a form of punishment is not illegal under Malaysian law, caning done in public, with the aggravated effects of public humiliation and exposure to the press, crowd and sharing on social media can be unconstitutional, infringing Article 5, Right to Life and Article 8, Equality under the Federal Constitution.
Although not explicitly stated, the constitution prohibits cruel, unusual or excessive forms of punishment as a violation to the right to life.
Further, public caning also infringes the right to equality as only Muslims will be subjected to such punishment, while non-Muslims are exempted.
In the absence of a fair and just criminal justice system and access to competent legal representation, such harsh punishment will disproportionately affect women, the poorer and lower classes, and risk the likelihood of wrongful convictions. Needless to say, caning is irreversible and cannot be remedied.
Caning and all the more so, public caning has no place in any civilised society and in this day and age. It is incompatible with human dignity and can only add to the humiliation and long-term psychological suffering of those who are subjected to this cruel punishment.
We call upon the Kelantan state government to reconsider their approach to syariah offences, to not just look at deterrence as an aim but to value instead universal and certainly Islamic concepts such as human rights, justice and mercy when sentencing offenders.
Eric Paulsen is the executive director of Lawyers for Liberty