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Official Statement: On The Public Caning Of The Women In Terengganu

 

The United Kingdom & Eire Malaysian Law Students Union (KPUM)  condemns the public caning of two Malaysian Muslim women for attempting to have same-sex relations. We strongly believe that the effect of this corporal punishment has been to deny these women of their basic human rights and also worsen the discrimination against Malaysia’s LGBT+ community.

 

 

Context

 

Two Muslim women, aged 22 and 32 respectively, were sentenced to six strokes of public caning and a fine of RM 3,300, or four months jail if they failed to pay the fine, for attempting to have same-sex relations in a car on April 2018 at Dataran Area Square, Dungun [1]. They were charged under Terengganu’s State Syariah provision, specifically Section 30 of the Syariah Criminal Offences (Takzir) (Terengganu) Enactment 2001, which was read together with Section 59(1) for mushaqah (sexual intercouse between a woman and a woman), after they pleaded guilty to the charge. Both women were given the opportunity to appeal the caning sentence within 14 days but neither chose to do so. Hence, on September 3 2018, they were caned in the Syariah High Court in Terengganu with approximately 150 people present as witnesses. According to news reports [2], the officer carrying out the sentence was advised to cane the accused at her own time or pace using only medium force. Observers also noticed that the force used on the younger woman was slightly stronger compared to the other.

 

Malaysian Law on Homosexuality

 

Malaysia is listed as one of the 72 countries that criminalises homosexuality. However, when legislation on the matter is closely examined, it is evident that this conclusion is not as straightforward as it seems. On the one hand, Malaysia’s civil law does not actually have any provision specifically criminalising homosexuality. Instead, what it does have is Section 377 of the Penal Code, which criminalises “carnal intercourse against the order of nature”. Section 377 only explicitly prosecutes the conduct of a certain act but not the category of people committing it. This section has never been used to prosecute homosexual couples in Malaysia. On the other hand, there is also Syariah law which applies only to Malaysian Muslims and are enacted by individual states within the country. Thus, the application of such may differ from one state to another. However, it is found that all State Syariah laws are rather consistent on the matter of homosexuality – explicitly criminalising it as an offence punishable with certain penalties, as contrasted with Section 377 of the Penal Code. A good comparison would be the Syariah law for both Terengganu and Penang [3], which identically imposes ‘a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to whipping not exceeding six strokes or to any combination thereof’ for the offence of mushaqah.

 

KPUM’s Response

 

 

The Union views the caning of the two as a gross violation of human rights. Malaysia has been a Member State of the United Nations (UN) since September 1957. Article 1 of the Universal Declaration of Human Rights, a historical document that has been adopted by the UN since the year 1948, explicitly states that “all human beings are born free and equal in dignity and rights”. To inflict public canning with the intention of humiliating both these women’s personal choices and sexual preferences in the presence of approximately 150 people is an ultimate violation of their self-dignity. As stated by Datuk Dr Mujahid Yusof Rawa, a minister in the Prime Minister’s Department, public presence during the caning of a Syariah offender must be reconsidered [4]. We concur with Prime Minister Tun Dr Mahathir Mohamad who stated [5] that the sentencing in this particular case did not reflect justice nor compassion, going against the teachings of the Islam religion which promotes tolerance and compassion.

 

Secondly, it must be emphasised that  public caning under Syariah law “is not meant to hurt or torture”, as stated by Syariah Court Judge Kamalruazmi Ismail, but instead functions as a lesson to educate the offender [6]. Therefore,  the guilty plea  of the two women should not be met with such a harsh sentence.  Regardless, we strongly believe that such corporal punishment is an inhumane form of torture meted out against offenders. It is also worth noting that in this case, both women did not have any legal representation [7], thereby indicating yet another gross breach of  their right to fair trial and justice.

 

We therefore urge the Federal Government, Members of Parliament and Islamic authorities of individual states to immediately abolish the practice of public caning altogether. It is a cruel, inhumane and degrading form of punishment which has been condemned by international authorities such as the UN Human Rights Council’s Special Rapporteur on torture. Although Syariah Law is under the jurisdiction of individual states, Federal Government can still intervene on the matter by amending Section 2 of the Syariah Courts (Criminal Jurisdiction) Act 1965 and remove whipping as a sentence which the Syariah Courts are entitled to mete out.

 

The Government of Malaysia must observe Article 8(1) of our very own Federal Constitution which provides for equality for all before the law and stop all forms of discrimination against individuals of the LGBT+ community. We believe that in a moderate and diverse nation such as ours, there is a great need for tolerance and acceptance of all individuals with different sexual orientations. The Supreme Court of India’s recent decision to quash Section 377 of the Indian Penal Code, decriminalising consensual gay sex, sheds light on the possibility for other deeply conservative countries like Malaysia to re-evaluate LGBT+ rights.

 

On behalf of the Union,

 

Wei Lynn Heng

Human Rights & Activism Officer 2018/2019

 

 

Nelynn Ng

President 2018/2019

 

Kesatuan Penuntut Undang-undang Malaysia di United Kingdom dan Eire (KPUM)/United Kingdom and Eire Malaysian Law Students Union.

 

References

 

 

[1] ‘Lesbian case: Don’t look down or ridicule offenders, says Syariah judge’ (The Star, 3 September 2018) <https://www.thestar.com.my/news/nation/2018/09/03/dont-look-down-or-ridicule-offenders-says-syariah-judge/>

 

[2] Michelle Tham, ‘Khairy slams public caning of two women in Terengganu’ (The Star, 3 September 2018) <https://www.thestar.com.my/news/nation/2018/09/03/kj-slams-public-caning-of-two-women-in-terengganu/>

 

[3] Section 30 of the Syariah Criminal Offences (Takzir) (Terengganu) Enactment 2001 and Section 26 of the Syariah Criminal Offences (State of Penang) Enactment 1996

 

[4] ‘Public presence during caning of syariah offenders must be reviewed, says Mujahid’ (The Star, 4 September 2018) <https://www.thestar.com.my/news/nation/2018/09/04/public-presence-during-caning-of-syariah-offenders-must-be-reviewed-says-mujahid/>

 

[5] Fazallah Pit, ‘PM: Sebat terbuka kes lesbian beri imej ‘Islam bengis’’ (ProjekMM, 6 September 2018) <https://www.projekmm.com/s/1669890/pm-sebat-terbuka-kes-lesbian-beri-imej-islam-bengis>

 

[6] Ibid [1]

 

[7] D.Kanyakumari, ‘2 Women Were Publicly Caned for Breaking the Law. But Was It Legal?’ (Unreserved, 4 September 2018) <https://www.unreservedmedia.com/women-public-caning-malaysia-homosexual-terengganu/>

 

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