The whipping meted out by the civil court is more severe than those carried out by syariah court but the uproar is unfairly targeted at the syariah court, says Department of Syariah Judiciary Malaysia syariah officer Hanifah Haydar Ali Tajuddin.
“There were cases of offenders being sentenced to caning in civil court but no one went to the prison to look at it like they did with whipping in the syariah cases.
“This tantamount to media sensationalisation. This is bias reporting,” she said at the symposium on “Whipping Sentence under Syariah and civil law: Retribution, Deterrent or Educational Value” here yesterday.
On Aug 12, the Syariah High Court in Kuala Terengganu fined two women RM3,300 and ordered they be caned six times each after they pleaded guilty to committing musahaqah (sexual relations between women), a crime under Section 30 of the Syariah Criminal Offences Enactment (Takzir) (Terengganu).
Hanifah also claimed the women punished under syariah law were “prosecuted” repeatedly due to the constant media reporting.
Syarie Lawyers Malaysia president Musa Awang said if people wanted to pick on whipping, they should first look at the ones done in civil courts.
Meanwhile, caning carried out in civil cases were for more serious and violent offences, said Ahmad Ibrahim Kulliyyah of Laws dean Prof Datuk Seri Dr Ashgar Ali Ali Mohamed.
“The severity of the syariah whipping carried out is similar to those meted out to child offenders in civil cases,” he said.
Malaysian Prisons Department senior assistant commissioner Tuan Abdul Kadir Jailani Ismail said offenders ordered to be whipped under civil law had it worse.
“Civil caning is more painful and severe, why do people not comment on it?” the head of legal unit said, adding that the rotan used in civil law is also thicker.
Datuk Joy Wilson Appukuttan, a senior member of the Malaysian Bar had raised the issue of whether women under syariah law should be allowed to be whipped as Article 75 of the Federal Constitution said that if any state law is inconsistent with a federal law, the federal law should prevail and the state law should be void.
Minister in the Prime Minister’s Department legal officer Awang Armadajaya, who said he was speaking in his personal capacity, pointed out that a law could fall under the federal list, state list or concurrent list.
The syariah law on whipping falls under the state list and the state has jurisdiction over the matter, he said.