THE RELEVANCY OF CANING AS A FORM OF CRIMINAL PUNISHMENT IN MALAYSIA.
By
Mohd Fared Bin Bahtar (2007294156) Mohd Nasri Bin Idris (2007294122)
Mohamad Saiful Idham B. Awang Mat Isa (2007294154) Muhammad Hafiz Muim Bin Md Rijani (2007294408)
Submitted in Partial Fulfillment of the Requirements for the Bachelor in Legal Studies (Hons)
Universiti Teknologi MARA Faculty of Law
October 2009
The students confirm that the work submitted is their own and that appropriate credit has been given where reference has been made to the work of others.
ABSTRACT
In Malaysia, corporal punishment by caning/whipping has been used for decades, mostly as an additional sentence to imprisonment or as an alternative to a fine.
There are four statutes that govern the sentences of whipping namely The Penal Code, the Arms Act 1960, the Firearms (Increased penalty) Act 1971, and Dangerous Drugs Ordinance 1952. There are three categories of persons who cannot be imposed the sentence of whipping, namely females, males sentenced to death, and males whom the court considers to be more than fifty years of age.
In recent events, questions has been put forward by the human rights movement that this form of punishment is rather harsh and inhumane. There has been a doubt on whether it is still relevant as a form of criminal punishment to be practised in this country. Some people view it as a rather uncivilized form of punishment rather than to rehabilitate, to deter, to reform and as retribution in accordance with the four theories of punishment highlighted by the jurist.
Caning/whipping or known as " Al-Jald" has also been a part of Islamic law on sentencing, and divided into two categories, whipping as provided for hudud offences and whipping for ta'zir offences. There has been a numbers of hadith and verse in the holy Al-Quran which approved the validity of whipping as a form of punishment in Islam. Therefore it can be conclude that in Islam, caning/whipping is acknowledge as a form of punishment.
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ACKNOWLEDGEMENT
This research project has been carried out by a team which included Mohd Fared Bin Bahtar, Mohd Nasri B. Idris , Mohamad Saiful Idham B. Awang Mat Isa and Muhammad Hafiz Muim Md. Rijani. All praise is to Allah Almighty for giving us strength and endurance to complete this research in stipulated time. This research provides a reasonably comprehensive introduction to criminal punishment and practice of whipping/caning as a form of criminal punishment in Malaysia.
We were greatly indebted to Prof Madya Mahanum, our supervisor, for her patience and kind advice. Without her guidance, it would be almost impossible for us to be able to complete this research. We would also like to express our sincere appreciation to Mdm Che Audah, law faculty lecturer, for her invaluable information and recommendation regarding corporal punishment in Malaysia. In addition, we would also like to thank all the people involved in completing our surveys.
Our special thanks go to our parents and our colleagues from Faculty of Law, UiTM for their moral support and suggestion.
Acknowledgement ii
Abstract iii List of cases iv Table of Contents v
CHAPTER ONE: INTRODUCTION
1 1 2 6 6 6 7 7 8
CHAPTER TWO: LITERATURE REVIEW
2.0 Literature Review 11 2.1 Theories of Punishment 11 2.2 Caning from an Administrative and Procedural Viewpoint 14
2.2.1 Procedure 16 2.2.2 Offences that may be punish by whipping 17
2.2.3 Sharia Caning 17 2.3 A Comparison Between Malaysia and Singapore 18
2.3.1 Introduction 18 2.3.2 Number of Strokes 19 2.3.3 Modus Operandi 19 2.3.4 Equipment 20 1.0
1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8
Introduction Introduction Background
Research Questions Objective and Scope Significance of the study Limitation of the research Research Methodology Literature Review
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2.3.5 Juveniles 21 2.3.6 Islamic Law 21 2.4 Islam Perspectives on Whipping/Caning 22
2.4.1 Whipping (Al-Jald) 22
2.4.2 Hudud Law 22 2.4.3 Ta'zir 23 2.4.4 The position in Malaysia 24
CHAPTER THREE: STATUTORY PROVISIONS AND CASE STUDIES
3.0 Introduction 27 3.1 The Penal Code 27 3.2 Islamic Criminal Law Whipping (Al-jald) 29
3.3.1 Whipping, flogging, or slashing 29
3.3.2 Hudud Law 29 3.3.3 Ta'zir 29 3.3.4 Response towards the application of caning 31
3.3.5 Reasons for caning 3 3
CHAPTER FOUR: RESEARCH FINDINGS
4.0 Research Findings 37 4.1 Analysis of Research Findings 44
4.2 Critical Analysis and Recommendations 44
Bibliography 48 Appendices 50
Appendix 1: Interview Questions 51 Appendix 2: Questionnaire 53
