Stop all caning to address ‘crisis’ in justice system, says NGO

KUALA LUMPUR: The Joint Action Group for Gender Equality (JAG) today urged the government to immediately enforce a moratorium on corporal punishment, in the wake of two women being caned by Islamic authorities in Terengganu.

The NGO said the caning, which was carried out in open court on Sept 3, “marked a dangerous escalation in the practice of corporal punishment, causing nationwide disbelief and outrage”.

The two women, who had pleaded guilty to attempting to have lesbian relations, were caned six times each at the Shariah Court.

Calling the caning a travesty and a grave miscarriage of justice, JAG urged the attorney-general to immediately review all state shariah criminal law enactments to ensure these were in line with the constitution.

It added that the response to criticism of the caning by various state parties had “reached a level of absurdity” with comparisons made between the methods of caning under shariah and civil law to differentiate which was “more compassionate”.

“We remind all parties that there is nothing compassionate about caning, what more as a state-orchestrated public spectacle. There is also nothing compassionate about defending and normalising such violence and humiliation as a means to educate.

“We call on all parties to stop pitting one judicial system against the other as we are all subjected to the same democratic process and principles.”

In a statement, JAG said the Terengganu case highlighted a critical systemic problem of access to justice for women and marginalised groups. The statement was endorsed by its 13 members including the All Women’s Action Society, Association of Women Lawyers and Sisters in Islam.

“JAG’s sustained work in supporting women as well as lesbian, gay, bisexual and transgender (LGBT) persons shows it is extremely challenging to obtain legal representation and support in morality-related cases under the shariah system.

“It often leads individuals with little or no legal advice to admit guilt as the only plausible way to end the traumatic experience of a state prosecution that relies heavily on the machinery of shame.

“This seems to be the case for the two women in Terengganu who, without legal representation, changed their initial plea from not guilty to guilty, only to receive the maximum whipping sentence by the court.”

JAG said arguments that state shariah punishments were independent of federal jurisdiction were invalid, giving as proof the fact that in the Terengganu case, a doctor and prison officers who were part of the federal system of governance were directly involved in the execution of the caning.

It said the Federal Constitution stated that laws regarding crime were under federal jurisdiction and it was, therefore, unconstitutional to hold that all areas of shariah criminal law were purely under unlimited state jurisdiction.

“The use of corporal punishment also contravenes the spirit of federal criminal law to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are vulnerable.

“Cruel methods such as caning ought to be prohibited as it causes irreversible and considerable mental and physical injury. The use of such methods in Terengganu perfectly illustrates how the state shariah system has deviated from the objective of criminal justice to protect people from ‘injury’,” it said.

Adding that Malaysia’s justice system was in crisis, JAG called for a moratorium on corporal punishment as an immediate first step to resolving this crisis.

The NGO said it had, on Aug 30, submitted a memorandum to the prime minister and his Cabinet outlining the grounds for ending corporal punishment from multiple perspectives, including from the viewpoint of shariah law.

“JAG calls upon the attorney-general to immediately review all state shariah criminal law enactments. This needs to be done urgently to ensure their constitutionality, and to fulfil Malaysia’s commitments to international laws and standards. We urge all state governments to impose an immediate moratorium on corporal punishment.

“This will launch Malaysia onto the right path towards realising the government’s commitment towards human rights and ratify the remaining six human rights conventions, including the UN Convention against Torture and other Cruel, Inhuman and Degrading Treatment and Punishment.

“The caning of the two women in Terengganu, and all the women before that, is a travesty and a grave miscarriage of justice that must never be repeated again.

“Human dignity is the basis of human rights. As our prime minister rightly pointed out: Islam should not be portrayed as fierce (bengis), but as a religion that is compassionate and accepting of differences.”