WHIPPING SENTENCE

After Malaysia gained her independence in 1957, efforts at the Federation level were
made to unify the administration of the Islamic law. Majlis Kebangsaan bagi Hal Ehwal
Islam Malaysia (MKHEIM), currently known as Jabatan Kemajuan Islam Malaysia
(JAKIM), was established on the approval of the Conference of Rulers (Majlis Raja-raja
MRR)) with the Religious Section at the Prime Minister’s Department as the secretariat.
The Council’s function, among others, is to advise the MRR, state governments or state’s
Islamic Religious Council on any matter concerning the legislation or the administration
of the Islamic religion, including matters concerning the education with the purpose to
improve, verify or to encourage equality of law or administration.[1] As it can be seen,
the establishment of MHEIKM and JAKIM is in conjunction with the provision of
Article 38(2)(b)(c) of the Federal Constitution which states that MRR’s functions, among
others, is “agreeing or disagreeing to the extension of any religious acts, observances or
ceremonies to the Federation as a whole” and “consenting or withholding consent to any
law and making or giving advice on any appointment which under this Constitution
requires the consent of the Conference or is made by or after consultation with the
Conference”.

However, as stated earlier, the power to draft Islamic law is under the jurisdiction of the
state government. The party which acts as secretariat in fact, has no executive authority to
order state governments to follow the model or if there exists, any aspect of the law for
the state government to amend any provision in the law that has been proposed especially
for the suitability in each state.

From the historical point of view, the Syariah Court has long been abandoned during
British colonialism.[2]

In reality, Syariah Court's standing is still at an unsatisfactory level. This can be seen
clearly where the jurisdiction of the Syariah Criminal Court is fully subjected to the
provision contained in the Parliamentary Act, namely Akta Mahkamah Syariah

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(Bidangkuasa Jenayah) 1985 (Pindaan 1984). This act indirectly restrains the right of
freedom and the power concerning the state’s jurisdiction on matters on Syariah Criminal
Court . This act allows only the State Legislative Assembly to make laws on Syariah
Criminal Offences where the sentence should not exceed 3 years jail, a fine of RM 5,000
and a whipping of no more then six strokes( 3:5:6).

OFFENCES PERTAINING TO WHIPPING SENTENCING

In Malaysia, the whipping sentence which is imposed on the convicted offenders for the
following categories:-

.Criminal

. Syariah Criminal

.Breach Of Trust (CBT)

.Juvenile

.Discipline offender jail

Based on the given jurisdiction, Syariah's criminal offences which impose the whipping
sentence varies between one state to the other. Furthermore, it also differs with respect to
the seriousness of the said offence which is provided under civil law. The offences which
impose such punishment puts emphasis on the effect rather than the act itself. As such, it
relates closely with matters relating to moral, code of ethics and offences which is in
contrary with social science ethics.

Offences relating to Syariah Criminal Law which is punishable by whipping based on

each state is as follows:

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No. State Act / Offences Sentence
Enactment /
Ordinance
1. Kelantan Criminal Code i) Zina (sec. 11) Imprisonment not exceeding
Enactment ii) Mukaddimah Zina 3 years and a fine not
Shariah (1985) (sec.12) exceeding RM 5,000 or both
AND whipping not
exceeding 6 stroked.

A fine more then RM 5,000

iii) Sodomy (sec. 14) or imprisonment not
exceeding 3 years or both
AND whipping not
exceeding 6 strokes.

A fine not exceeding RM

iv) Intoxicating Drinks 5,000 or imprisonment for
(sec. 25) term not exceeding 3 years or
both AND whipping not
exceeding 6 strokes.

2. Pahang Administration Intoxicating Drinks A fine of RM 5,000 or

of Islamic Law (sec. 136) imprisonment for a term not
and Malay exceeding 3 years or both
Tradition Pahang AND whipping no t
(1987) exceeding 6 strokes.

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3. Melaka Islamic law i) External type A fine not exceeding RM
offence relationship natural 5,000 or imprisonment not
Enactment (State (sek.58) exceeding 36 months or
of Malacca) whipping not exceeding 6
1991 strokes or any combination
thereof.
4. Perlis Inside Crime i) Drink intoxicate Fine not exceeding
Enactment (sec. 24) i) Drink RM5000.00 @ jail not
Islamic law intoxicate (sec. 24) exceeding 3 years @ cane no
1991 6 times whipping @ whoever
combination
5. Perak Crime i) Relationship Fine not exceeding
Enactment muabbad and ghairu RM5000.00 @ jail toak
Shariah (Perak) muaabbad (sek.45) exceeding 3 years @ both
1992 ii) Prostitute wife and can also imposed
(sek.47) whipping tiak more 6 times
iii) Illicit intercourse whipping
(sec. 48)

6. Sabah Criminal i) External sexual Dendan not exceeding

Offence intercourse natural RM5000.00 @ jail not
Enactment (sek. 76) exceeding 3 years @ cane no
Shariah (1995) ii) Illicit intercourse more 6 times whipping @
(sek.80) whoever combination

7. Selangor Crime i) False Doctrine (sek. A fine of not more

Enactment 7) RM5000.00 @ jail not
Shariah ii) Tarnish place of exceeding 3 years @
(Selangor) 1995 worship (sek. 11) whipping not exceeding 6
iii) Incest (sek. 22) times @ whoever
iv) Prostitute wife (sek. combination
23)

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 v) Procurer (sek. 24)
vi) Wedding sexual
intercourse (sek. 25)
vii) Illegitimate Sexual
Intercourse Preparation
(sek. 26)
viii) Contrary sexual
intercourse with
natural (sek. 28)

8. Pulau Pinang Criminal i)False Doctrine (sek. A fine of not more

Offence 4) RM5000.00 @ jail not
Enactment ii) Incest act (sek. 20) exceeding 3 years @
Shariah (Penang)iii)Prostitution (sek. whipping not exceeding 6
1996 21) times @ whoever
iv)Procurer (sek. 21) combination
v) Illegitimate sexual
intercourse (sek. 23)
vi)Sodomy (sek. 25)
vii) Musahaqah (sek.
26)

9. Wilayah Offence Act i)False Doctrine (sek. A fine of not more

Persekutuan Shariah 's Crime 4) RM5000.00 @ jail not
(Federation 's ii) Incest act (sek. 20) exceeding 3 years @
Territories) 1997 iii)Prostitution (sek. whipping not exceeding 6
21) times @ whoever
iv)Procurer (sek. 21) combination
v) Illegitimate sexual
intercourse (sek. 23)
vi)Sodomy (sek. 25)
vii) Musahaqah (sek.

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 26)

10. Terengganu Criminal Code i) False Doctrine A fine of not more

Enactment (sek.4) RM5000.00 @ jail not
Shariah (Takzir) ii) Incest act (sek. 24) exceeding 3 years @
Terengganu iii) Act as preparation whipping not exceeding 6
2001 to prostitute (sek. 25) times @ whoever
iv) Act as preparation combination
to prostitute wife or
child in care its (sek.
26)
v) Prostitute wife or
child (sek. 27)
vi) Procurer (sek.28)
vii) Musahaqah (sek.
30)

11. Sarawak Criminal i)False Doctrine (sek. A fine of not more

Offence 4) RM5000.00 @ jail not
Ordinance ii) Incest act (sek. 20) exceeding 3 years @
Shariah iii)Prostitution (sek. whipping not exceeding 6
(2001) 21) times @ whoever
iv)Procurer (sek. 21) combination
v) Illegitimate sexual
intercourse (sek. 23)
vi)Sodomy (sek. 25)
vii) Musahaqah (sek.
26)

Based on the following acts, the whipping sentence which is imposed on the convicted
offender for the intoxicating drink offense is provided only at three states, namely

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Enakmen Pentadbiran Malay Islamic Religion and Tradition Pahang (1987), Enakmen
Kanun Jenayah Shariah Kelantan (1985) and Enakmen Jenayah Dalam Syarak, Perlis
(1991). Nevertheless, the sentence permitted does not differ between one state to another
state which provides the whipping sentence. The offender which has been convicted can
be sentenced to a fine not exceeding RM 5,000 or imprisonment for a term not exceeding
3 years or whipping not exceeding 6 strokes or any combination thereof.

It is evident that the offender who commits it in any other state which provides other then
the whipping sentence, shall only be sentenced to a fine or imprisonment. In other words,
the offenders are only imposed with the ta'zir penalty only. Indirectly, the differences in
the punishment imposed on the offenders is inconsistent and can be seen as if they
(offenders) have been given a choice to commit the offence in any other state which does
not impose the whipping sentence. This has resulted in the impression that the whipping
sentence itself is not valid and should not be imposed on the offender eventhough there is
a provision in the current existing law. This is due to the fact that there is a difference in
the provision for the offense of intoxicating drink itself and is inconsistent between one
state to another. This has been made as an excuse for some of the parties to object the
imposing of the whipping sentences, besides the excuse of maintaining the benefit of the
non-muslim and the income of the liquor seller.

To enable the enforcement of the whipping sentence for the offences which has been
provided by the act or enactment or ordinance, state government has gazetted a procedure
or method of Syariah Criminal where there is a consistency between one state to another.
The undeniable fact is that the implementation is parallel and is in harmony with the
Islamic Law. Due to this, it would be up to the discretion of the judge to decide on this
matter.

METHODOLOGY FOR THE IMPLEMENTATION OF SYARIAH’S WHIPPING

SENTENCE

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Criminal Procedure code or Enakmen Tatacara Jenayah Shariah has laid down the
procedure for the implementation which encompasses all aspects including equipment,
place, enforcement, exemption, current aspect and for the aftermath of the implemented
sentence.

Equipment used for the whipping sentence, not including the handle, should be of the
same manufacturer whether it is of a cane or small branche of a tree that has no section or
width and length not exceeding 1.22 metres and thickness not exceeding 1.25
centimetres.[3]

Even before, during and after the whipping sentence is implemented, there are a few
basic procedures which has to be complied with in parallel with the requirement of the
law. Among them are :

(a) offender is to be assessed by a Government Medical Officer who will then certify that
the offender is in good health and is able to proceed with the said sentence.

(b) if the offender is pregnant, the sentence shall be postponed until the end of her 2
months confinement period afther the birth of the baby, or if there is an abortion, or
whichever situation arises.

(c) sentence must be carried out in front of a Government Medical Officer at any of the
location which has been specified by the Court or at any location which has been decided
by the state government for this purpose.

(d) the person appointed to carry out the sentence should be mature and just.

(e) the person using the whipping equipment should only use medium strength without
needing to raise his hand exceeding his head as not to hurt the offender’s skin.

(f) after one stroke of whipping, he should raise the whipping tool on not pull it.

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(g) whipping may be imposed to all body parts except for the face, head, stomach, chest
or private parts.

(h) offender must wear the clothes according to Islamic law

(i) if the offender is a man, whipping should be served while he is standing, and if the
offender is a woman, then when she is sitting down.

(j) if during the whipping sentence the Government Medical Officer certifies that the
offender can no longer accept the whipping, then the sentence must be postponed until it
is certified again by a government Medical Officer that the offender is healthy again to
continue with the remaining whipping sentence. [4]

In section 125 (4), the same enactment provides that in the case where the offender is
sentenced to whipping only, he should then be treated was if he has been sentenced of
imprisonment until the whipping sentence is served.[5]

However, there is an exception in cases where the offender has reached the age of fifty
years or more. Section 125 (5) states that if the Government Medical Officer certifies that
the offender, due to old age, illness or any other cause that may prohibit the whipping
sentence to be carried out on him, then the case must be referred to the court who then
may order for the sentence to be carried out in ways which the court may seem fit.

Should the whipping sentence is an addition to the imprisonment term, then the sentence
should only be carried out after appeal has been decided and confirmed by the Court of
Appeal.[6] Nevertheless, that sentence should be carried at the soonest opportunity,
immediately after receiving the order from the Appellate Court confirming the sentence.
[7]

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Based on foregoing provisions and the study of the procedure or method in other states
has been referred and updated from Enakmen Tatacara Jenayah Shariah (Kelantan state)
2002 based on approval of the state government which had enforced the methods for
whipping sentence since 1987.[8]

However, there no provisions in any act, enactment, ordinance or code which stated that a
woman offender is exempted from the whipping sentence , even though it is not in
parallel with the provisions under Section 289 Kanun Prosedur Jenayah.[9] which states
that an offender who is a woman could not be imposed the whipping sentence.

What needs to be taken into attention is that the whipping sentence that is imposed has
and impact and may cause injury as that which has been practiced on civil crom
offenders to the extend where it can be guaranteed that the offenders will not repeat the
same offense in the near future. This is because the methodology used fully adopted the
practice of that the civil court. This has resulted in the misinterpretatioin and
misunderstanding of the parties which has little knowledge on the execution of the
whipping sentence based on the Islamic Law. In order to uphold the dignity of Islamic
Law’s method of sentencing, and to avoid it from being critized and prejudiced to the
extend where the society has misunderstood the law in Islam, it is propsed that a study is
to be conducted, or a plan devised for a prison to be built especially for syariah criminal
offenders, away from the civil criminal offenders. Besides for the purpose of enforcing
the sentence on syariah criminal offenders parallel to the Islamic law, it should be taken
into consideration that the enforcement acts as a lesson for the offender and the society as
a whole.

ANALYSIS ON CASES

Eventhough the whipping sentence has been approved for more then twenty year by
Kelantan state government which since then has been adopted by the Syariach Criminal
offences in other states, this sentence has yet to be imposed on a woman offender.

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In 2009, Shariah 's High Court Kuatan, Pahang had imposed the whipping sentence on a
woman offender, Kartika Sari for the offense of consuming intoxicating drink.[10]

Following that, the whipping sentence was imposed on a woman offender in the case of
Pendakwa Syarie v Nadiah Najat Binti Hussin. [11] In this case, the accused was
convicted by Syariah 's High Court Selangor in Shah Alam for the offence under section
26 of Enakmen Kesalahan Jenayah Shariah (Selangor state) namely, an act preparatory to
sexual intercourse out of wedlock. The accused was sentenced to a fine of RM 5,000 or
imprisonment for a term of 12 months AND whipping not exceeding 6 strokes.
Nevertheless, after fine was paid, the accused filed for an appeal from the Syriah’s
Appeal Court for the whipping and is currently in the hearing process.

Likewise, in the case of Pendakwa Syarie v Hannani Binti Sabran,[12] the accused was
charged under Section 23 (2) Criminal Offence Act Shariah (Federation 's Territories)
1997 for sexual intercourse out of wedlock. Shariah 's High Court in Kuala Lumpur on
29th Decemeber 2009 sentenced the accused to imprisonment for a term of 2 months and
whipping of 3 strokes and a fine of RM 1,000. In case of failure of paying the fine, she
should then be imprisoned for a month and the accused was ordered to sincere repentance
(taubat Nasuha) for the offending act. Although the accused has made her appeal on 31
December, 2009, she was still imprisoned for a period of 14 days and since there is no
suspension on the execution until 11th January, 2010, the offender was then released on
bail for RM 450.00.
From the cases stated above, it is evident that has been various obstacles on road to
enforce the whipping sentence without prejudicing offender’s fundamental rights to make
an appeal. Almost all of the offence which is not due to consuming intoxicating drinks, it
is all based on the confession by the offender him and it was him who surrendered
himself in. Despite the confession, the offender is still able to make an appeal. This
clearly is not in accordance with the execution of the hadd sentence in Islamic Law.

In several states, the whipping sentence have yet to be enforced especially for cases
pending execution on 25th February 2010, As a matter of fact, they have been postponed.

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[13] This indirectly shows that the enforcement and the execution of the whipping
sentence was not carried out eventhought the offenders have refused to make an appeal
and maintain their guilty plea. This has portrayed the weaknesses of the enforcement of
sentences at syariah court’s level.

CONCLUSION

The current provisions contain in our acts has been enacted for nearly twenty years,
however the enforcement and the execution of the whipping sentence is still vague to a
point where it is impossible to implement it in our society. It appears that the situation
has yet to improve. This is evident, where when the court impose the whipping sentence
on the offender, there are many obstacles and protests made by certain parties to a point
where it was suggested for the said provision to be researched and studied in depth or
even to be revoked even after being gazetted for twenty years.

Therefore, a transformation is needed to create a specific Shariah prison and as such there
is a great need to hasten the establishment. It is a wise move for the government to do so
as to ensure the dignity of syariah court itself as an institution of justice is maintained and
secured as it was acknowledged immediately after the amendment of article 121 of the
federal constitution. Besides benefiting from ruh Islamiyyah as the intention of the
lawmakers for the sentences imposed to be made as a lesson for the offender and the
society as a whole. Besides that, the intention of imprisonment is to stop and deter
criminal acts from continuing. It is also not something which is impossible to execute as
the special position of the MRR has been successfully restrained and is adopted so much
so that they are not exempted from the law. There is a great need for such enforcement
and execution of Islamic practice such as the whipping sentence without the need for any
interference from any other parties in order to achieve justice, aspiration and the benefits
of the such sentencing.

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