Yuhanza Binti Othman, Ekmil Krisnawati Erlen Joni, Ida Rahayu binti Mahat
Faculty of Law, UiTM, Kampus Bandaraya Melaka
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Imposing whipping sentence serves not only to punish the offender for crime committed but to deter commission of the crime in the future. There are various offences which are punishable by whipping such as rape, kidnapping in order to murder, incest, and others. The provision for whipping sentence exists in both Syariah and civil law. The Criminal Procedure Code 1999 contains clear provisions pertaining to whipping on male offenders only because Section 289 of this Code expressly states that women offenders are exempted from whipping sentence. The Syariah law, however, does not distinguish male and female offenders as regards imposing whipping sentence as all offenders shall suffer the same modes of sentencing when they committed any crime. Nevertheless, Syariah Court judges in Malaysia have been reluctant to impose whipping sentence on women offenders until recently. In 2009, the Malaysian public was shocked when the Syariah Court granted whipping sentence to Kartika Seri Dewi Sukarno, Noorazah Baharuddin for consuming intoxicating beer and three other women offenders for Sexual intercourse out of wedlock. The Syariah law in Malaysia has several provisions pertaining to whipping sentence for offences such as drinking intoxication, incest and adultery; however, there is unclear procedure on whipping Muslim women offenders. Thus, this research shall study and analyse the procedural guideline on whipping sentence for Muslim women offenders by analysing the existing law in Malaysia and comparing the law of whipping sentence in other countries. It is hoped that this research would provide a concrete description, explanation and recommendation in improving the Syariah law in Malaysia on whipping in deterring the accused and the general public from committing similar offences in the future.
In Malaysia, the spread of Islam can be seen during establishment of Malacca Sultanate by Indian traders from Gujerat and Arabs from West Asia. The Malacca Sultanate has made Islam as state religion and is applied alongside Malay customary law. Malacca has great system of law based on written codes; there are Hukum Kanun Melaka or Undang-Undang Melaka, Undang-Undang Laut Melaka and Risalut Hukum Melaka. Islamic criminal law was administered according to the Syariah law and the criminal offender shall be punished based on Islamic punishment.
Civil whipping in Malaysia was introduced by British where during this time the criminal law applicable was English law. In contrast, the administration of Islam was left to the head of Malays communities and it only limited to family, religion and Muslim affairs. After several years of British colonization, the applications and functions of Islam in the system plays are limited where according to Article 74 of the Federal Constitution and Second List in the Ninth Schedule, Islamic law is a matter failing within the state list, that is, it is a matter over which the State Legislature has jurisdiction and not the Federal Legislature. Thus, with regards to offences or Islamic Criminal Law, the Federal Constitution goes on to provide that the State Legislature may make laws for the creation and punishment of offences by person professing religion of Islam. Likewise, the State Legislature has jurisdiction over the constitution, organization and procedure of Syariah courts.
There are two types of whipping as punishment for criminal offenders that are firstly, civil whipping and secondly, Syariah whipping. With regard to civil whipping, the relevant procedure is under the Criminal Procedure Code (Act 593)—(Revised 1999) for offences under federal states and is applicable for both...