Caning in Malaysia

Caning is used as a form of legal corporal punishment in Malaysia. It can be divided into at least three contexts: judicial/prison, school, and Sharia (Syariah). Of these three, the first two are largely a legacy of, and are influenced by, British colonial rule in the territories that are now part of Malaysia, particularly Malaya.^[1] Similar forms of corporal punishment are also used in some other former British colonies, including two of Malaysia's neighbouring countries, Singapore and Brunei.

Judicial caning, ordered as part of a criminal sentence imposed by civil courts on male criminals, is the most severe of the three types of caning. It is always ordered in addition to a prison sentence for adult offenders. Male convicts who were not sentenced to caning earlier in a court of law may also be punished by caning if they commit aggravated offences while serving time in prison.

In primary and secondary schools, male students who commit serious offences may be punished with a light rattan cane.

Malaysia, being a Muslim majority country, has a separate justice system its Muslim population. Under this system, Sharia courts can sentence Muslim men and women (including Muslim foreigners) to caning for committing certain offences. Sharia caning is much less severe as compared to judicial caning and is designed to humiliate the offender rather than to inflict physical pain. This form of caning is also practised in Indonesia's Aceh Province, where it is more common.

Malaysia has been criticised by human rights groups for its use of judicial caning, which Amnesty International claims, "subjects thousands of people each year to systematic torture and ill-treatment, leaving them with permanent physical and psychological scars".^[1]

Judicial caning

History

Caning, as a form of legally sanctioned corporal punishment for convicted criminals, was first introduced to Malaya (present-day peninsular Malaysia and Singapore) by the British Empire in the 19th century. It was formally codified under the Straits Settlements Penal Code Ordinance IV in 1871.^[2]

In that era, offences punishable by caning were similar to those punishable by birching or flogging in England and Wales. They included robbery, aggravated forms of theft, burglary, assault with the intention of sexual abuse, a second or subsequent conviction of rape, a second or subsequent offence relating to prostitution, and living on or trading in prostitution.^[2]

The practice of judicial caning was retained as a form of legal penalty after the Federation of Malaya declared independence from Britain in 1957. It is largely a legacy of British colonial rule and has nothing to do with "Islamic justice" even though the majority of the Malaysian population are Muslims.^[2]

Legal basis

Sections 286–291 of the Criminal Procedure Code lay down the procedures governing caning, which is referred to as "whipping" in the Code in accordance with traditional British legislative terminology. The procedures include the following:

• The offender cannot be sentenced to more than 24 strokes of the cane in a single trial. In the case of a juvenile offender, the number of strokes is capped at 10.
• The rattan cane used shall not be more than half an inch in diameter.
• In the case of a juvenile offender or a person sentenced to caning for committing relatively less serious offences (e.g. white-collar offences), the caning is inflicted in the way of school discipline using a light rattan cane.
• Caning is not to be carried out by instalments.
• A medical officer is required to be present and to certify that the offender is in a fit state of health to undergo the punishment.

Boys aged between 10 and 18 may be sentenced to a maximum of ten strokes with a light cane.^[3]

Exemptions

The following groups of people shall not be caned:^[4]

• Women
• Men above the age of 50, except those convicted of rape^[5]
• Men sentenced to death

Offences punishable by caning

Malaysian criminal law prescribes caning for a wide range of offences, always in addition to a prison term and never as a punishment by itself (except for juvenile offenders in some cases). Caning is usually a routine punishment for serious offences, notably those involving rape, violence or drug trafficking, but also for lesser offences such as illegal immigration, bribery, and criminal breach of trust. Every year, thousands of illegal immigrants (mostly from Indonesia) are briefly incarcerated, punished with one or two strokes of the cane, and then deported. Unlike in Singapore, foreigners who overstay their visa in Malaysia are not sentenced to caning.^[6] In November 2003, illegal moneylending was added to the list of offences punishable by caning.^[7]

Malaysians have called for caning to be imposed as a punishment for illegal bike racing,^[8] snatch theft,^[9] traffic offences,^[10] deserting one's wife,^[11] perpetrating get-rich-quick schemes,^[12] and vandalism^[13] (cf. Singapore's Vandalism Act). However, these offences still remain outside the list of offences punishable by caning.^[14]

Caning officers

The criteria for the selection of caning officers is very stringent, with maybe only two out of every 30 applicants being chosen. The selected ones undergo special training for the job. They are trained to swing the cane at a speed of at least 160 kph and produce a force upon impact of at least 90 kg.^[15] In 2005, they were paid 10 ringgit for each stroke as compared to three ringgit previously.^[16][17][18]

The cane

Two types of judicial canes: The thicker canes are in the front row while the lighter canes are in the back row.

Two types of rattan canes are used for judicial caning:^[18]

• Thinner cane, used on white-collar criminals who committed offences such as bribery and criminal breach of trust.
• Thicker cane, used on offenders who committed serious and violent crimes, such as drug trafficking, armed robbery and rape.

The thicker cane is about 1.09 m long and 1.25 cm (0.492 inches) thick.^[19]

Administration procedure

For adult offenders

A mannequin tied to an A-shaped frame. Note the "torso shield" that covers the lower back and upper thighs while leaving the buttocks exposed.

The punishment cannot be carried out until after seven days from the date when the offender was sentenced to caning. If the offender made an appeal to an appellate court, the sentence must be confirmed by the court before it can be carried out.^[20]

The offender is not told in advance when he will be caned; he is notified only on the day his sentence is to be carried out. On the day, a medical officer inspects him and determines whether he is in a fit state of health to undergo the punishment.^[18][21] If the medical officer certifies that the offender is not in a fit state of health to be caned, the offender will be sent back to the court for the caning sentence to be remitted or converted to a prison term of up to 24 months, in addition to the original prison term he was sentenced to.^[22]

If the medical officer certifies the offender fit, the offender is then confined in a holding area with other prisoners who are going to be caned on the same day. The offender is escorted to the caning area when it is his turn to be punished. The caning is conducted in an open yard surrounded by walls in the prison,^[23] out of the view of the public and other prisoners. The prison director oversees the caning, along with the medical officer and other prison officers. He reads the terms of punishment to the offender and asks him to confirm the number of strokes.

In practice, the offender is required to strip completely naked for the punishment. However, he may be given a piece of loincloth-like garment or a sarong to cover his genitals. After he confirms the number of strokes, he is taken to an A-shaped wooden frame, to which he is secured throughout the duration of the punishment. The front of his body rests against a padded cushion on the frame while his arms are tied above his head and his legs spread apart and secured tightly to the frame (see the mannequin in the picture on the right). A "torso shield" is fastened around his body, exposing only his buttocks while protecting his lower back (the kidneys and lower spine area) and upper thighs (near the genitals) from any strokes that might land off-target.^[23][24] A prison officer stands in front of the offender and wraps his hands around the offender's head in case he jerks back his head and injures his neck. The caning is administered on the offender's bare buttocks. The caning officer stands beside the frame and delivers the number of strokes specified in the sentence at intervals of about 30 seconds. To ensure maximum effect, he ensures the tip of the cane comes in contact with the target area and drags it quickly along the skin to break it.^[25]

Sanitary procedures are observed as a precaution against HIV transmissions. Each cane is soaked in antiseptic before use to prevent infection. In the case of a HIV-positive subject, the cane used is burnt after the punishment is over. Caning officers also sometimes wear protective smocks, gloves and goggles.

For juvenile offenders

The Criminal Procedure Code stipulates that juvenile offenders (below the age of 21) sentenced to caning shall receive the punishment "in the way of school discipline using a light rattan cane." The legal limit for juveniles is 10 strokes. According to press reports from between 2012 and 2014, the punishment is administered by a police officer inside the courtroom in full view of everyone present there, immediately after the judge announced the sentence. The offender keeps his clothes on and receives the punishment on the buttocks over clothing while bending over a table. A medical officer is also present to supervise the punishment and ensure safety.^[6]

A lawyer who represented a juvenile offender who was sentenced to public caning in court defended the punishment by saying that it was part of a plea bargain with the prosecution to ensure that the offender would be punished "in the way of school discipline" instead of the manner in which adult offenders are caned in prison. She also added that such punishments are common in Malaysia and that she had witnessed six of such cases in her five years of legal practice. However, another lawyer pointed out there were errors in the way the sentence was ordered and carried out.^[26]

Medical treatment and the effects

A 2010 report by Amnesty International described the severity of judicial caning as follows, "In Malaysian prisons specially trained caning officers tear into victims' bodies with a metre-long cane swung with both hands at high speed. The cane rips into the victim's naked skin, pulps the fatty tissue below, and leaves scars that extend to muscle fibre. The pain is so severe that victims often lose consciousness."^[1] In any case, judicial caning usually causes bleeding and leaves permanent scars on the offender's buttocks.^[27]

After the caning, the offender is released from the frame and taken to the prison clinic for medical treatment.^[28]

Malaysian caning videos

In the mid 2000s, the Malaysian government released three graphic videos featuring several genuine judicial canings, ranging from one stroke to 20 strokes. The canings were filmed in Seremban Prison near the national capital, Kuala Lumpur.^[29][30]

Comparison of judicial caning in Malaysia and Singapore

Judicial caning is also used as a form of legal punishment for criminal offences in Singapore. There are some differences between Malaysia and Singapore.

^[32]

Prison caning

Under Malaysian law, the officer in charge of a prison (holding the rank of Assistant Commissioner of Prison and above) may impose caning on prisoners who commit aggravated prison offences^[33] even if they were not sentenced to caning earlier in a court of law. The prisoner is given an opportunity to hear the charge and evidence against him and make his defence.^[34]

Sharia caning

Malaysia also has a separate system of Sharia courts, which can order caning for Muslim men and women. This kind of caning is rarely implemented, and is quite different from, and much less severe than, judicial caning under Malaysian criminal law. It is intended to be shaming rather than particularly painful. The punishment is carried out in an enclosed area, away from the view of the public. The cane used is smaller as compared to the one used for judicial caning. The offender is fully dressed and receives the punishment on his or her back; men remain standing when they receive the punishment while women are seated. The caning is administered by an officer of the same sex as the recipient. Each stroke is executed with moderate force so as not to break the skin, and the caning officer delivers the punishment with a "limp wrist" and without raising his/her hand. A medical officer is also present throughout the procedure to ensure safety.^[25][35]

Notable cases

• There was controversy surrounding the caning sentence for Kartika Sari Dewi Shukarno, a Malaysian hospital worker working in Singapore.^[36] She was sentenced in 2009 by a Sharia court to six strokes of the cane and a fine for drinking beer in a hotel bar. Some said that Kartika's sentence did not conform to Islamic law, but Mohamad Sahfri, the chairman of the Pahang Religious Affairs Committee, said that all relevant regulations had been observed.^[37] On 1 April 2010, one day before the sentence was due to be carried out, the Sultan of Pahang commuted the sentence to three weeks of community service.^[38] Kartika said she preferred to have the original sentence imposed.^[39]
• On 9 February 2010, three Muslim women were caned by order of a Sharia court for adultery, the first time women were caned in Malaysia.^[40][41] The advocacy group Sisters in Islam and the Malaysian Bar Council said that these canings violated federal civil laws prohibiting the punishment against women.^[42][43]

School caning

Corporal punishment is lawful in schools for boys only, and is regulated by the Education Regulations (Student Discipline) 2006.^[44]

A picture showing the marks left on a student's palm after a caning

However, there are many reported cases suggesting the caning of schoolgirls, on their palms, is a common practice especially in primary schools.^{[45][46][47][48]} While serious infringements such as theft, smoking, gangsterism and bullying are among offences punishable by caning, minor transgressions such as incomplete homework have also been dealt with by physical punishment.^[49]

Government guidelines on school caning

• Caning is permitted for boys only
• In most circumstances the caning can only be conducted by the Headmaster
• A teacher can only cane when the Headmaster delegates this power to him in writing, and he must be a permanent teacher of the school.
• The student can only be caned on the buttocks (over clothing) or the palm. He cannot be caned on the bare buttocks.^[50]
• The caning is to be conducted in a confined area.
• The student's parents will be informed and invited to witness their son's punishment.^[51]
• Caning must only be for a repeated or very serious offence.

Public caning is banned in schools after the Education Regulations (Student Discipline) 2006 came into force. The Malaysian government does not encourage caning for primary school students, but caning is allowed in secondary schools, and may only be administered by the principal or a person to whom he delegates the power.^[52]

Criticism

Malaysia has been criticised by human rights groups for its use of judicial caning. A 2010 report by Amnesty International criticises the increasing use of judicial caning in Malaysia and claims the punishment "subjects thousands of people each year to systematic torture and ill-treatment, leaving them with permanent physical and psychological scars".^[1] Amnesty International estimates that some 10,000 people are caned each year, many of them for immigration offences. The charity argues the practice could cause long-term disabilities and trauma and said many of the foreigners sentenced to caning did not get legal representation or understand the charge.^[53]

Malaysian officials reject the accusation of torture. The Prison Department states that canings are carefully supervised by prison authorities and attended by medical doctors.

See also

• Caning
• Caning in Singapore
• Judicial corporal punishment
• Human rights in Malaysia

References

External links

• "Malaysia caning case sparks debate", Al Jazeera, Qatar, 23 August 2009. Includes video with interview with Kartika.
• (Malay) "Hukuman Sebat Rotan Dari Segi Perundangan Dan Pelaksanaan". (English: "Caning from an Administrative and Procedural Viewpoint") Prisons Department of Malaysia. Retrieved 13 June 2008.