Difference and similarities of civil caning punishment and syariah caning

punishment
In Malaysia, the punishment of caning can be differentiate into two which are
civil caning and syariah caning. These two type of caning have their similarities and
difference. Firstly, it can discuss about their origin. For the origin of the caning
punishment from civil law in Malaysia, caning is one of the form of punishment since
it has been introduced to Malaya by the British during the 19th century. In the year of
1871, it then formally codified under the Straits Settlements Penal Code Ordinance.
Nowadays, the sentence of civil caning which can also call as whipping punishment is
administered pursuant to the Criminal Procedure Code.1 This means that whipping is
provided in the Criminal Procedure Code. The Criminal Procedure Code had lays
down the procedures such as how the criminal trials are supposed to be conducted,
how punishments are to carried out, and also something to do with the procedural
aspects of criminal law. Next, the Penal Code is also the law which had describes the
types of offenses in Malaysia and the corresponding punishment. These laws are
applied to whole the country.2 These laws also take precedence over other laws.
For the caning punishment from syariah law, it is sanctioned by the Al- Quran
and Sunnah. The caning punishment had been contended in the case as slandering a
chaste woman, fornication and consuming liquor. For example, the Surah An-Nur
verses 4 and 5 (24:4 and 24:5) of Al- Quran had states the punishment for slandering a
chaste woman is to scourge them with eighty stripes. Besides, syariah laws are only
apply to Muslims. The Syariah Criminal Offences (Federal Territories) Act 1997 act
as a base model for each individual State to enacted and enforced the Syariah laws.
Section 125 of the Syariah Criminal Offences (Federal Territories) Act 1997 had
also point out some main points for the punishment of syariah caning.3 This clearly
means that each state has their own Act to regulate Syariah criminal offence such as
Selangor has the Syariah Criminal Procedure (State of Selangor) Enactment 2003.
So, the syariah caning punishment is came in force earlier than civil caning
punishment because syariah caning is enforced in the Al-Quran and Sunnah which

1
“Civil whipping is more severe” (October 08, 2018)
<https://www.thestar.com.my/opinion/letters/2018/10/08/civil-whipping-is-more-severe> accessed
January 22, 2020
2
Amsyar Ahmed, “How does whipping work as a punishment in Malaysia?” (October 18, 2018) <
https://asklegal.my/p/whipping-criminal-punishment-syariah-caning-malaysia> accessed January 22,
2020
3
Syariah Criminal Offences (Federal Territories) Act 1997, Section 125
had came in before the British introduced the civil caning into Malaysia. Both of them
have the absolutely difference origin of caning punishment. Besides, the punishment
of civil caning have been equally apply to the whole Malaysian include Muslims
based on Penal Code and Criminal Procedure Code but syariah caning punishment is
only apply to Muslims and it need to based on the law which enacted and enforced by
each individuals State. These are the difference of origin of caning punishment
between civil caning and syariah caning.
The civil caning punishment and syariah caning punishment have a similarity
which is their purpose of caning punishment. Apart from imprisonment, fine and
death penalty, caning punishment is also one of the punishment which can be used to
punish the person who conduct the illegal offence. Since caning punishment is
applicable in civil law and syariah law, so this punishment is legal in Malaysia. Civil
law and syariah law have set out a few of offenses which liable for the caning
punishment. For example, caning punishment apply to the offenses such as rape and
robbery in civil law while caning punishment apply to the offenses such as adultery
and liquor drinking in syariah law. The purpose to have the caning punishment in civil
law and syariah law is to alert everyone not to do anything which is contrary the law
and illegal. Besides, the aim of caning punishment is to protect the society from the
dangers of crime. In Al-Quran (2:179) it states that “there is (preservation of) life for
you in retribution, O people of understanding, that you may become pious.” If the
crime did not countered with the punishment, then the people will easily and simply
conduct the crime and the society will be in grave danger. This punishment can let
those who break the law to suffer the pain and make them recognize the consequences
of breaking the law so that they will not conduct the offenses again. Moreover, the
another purpose of caning punishment in civil law and syariah law is because the
punishment is reformative and retributive. Civil law and syariah law both seek to
reform the criminal. The person who found guilty for the offense must suffer the
sanctions and deserved to be punished. Such person must be responsible for their
guilty conduct if he is found guilty under the civil law or syariah law. Hence, both
civil caning punishment and syariah caning punishment share the same purpose of
caning punishment. This is because they want to ensure that the security of society
can be preserved and deter the offender from repeating such acts and deter others who
might be tempted to commit crime.
 Beside that, the intensity of the caning punishment can also shows the differences
between the civil caning punishment and syariah caning punishment. Compare to the
syariah caning punishment, the civil caning punishment is more severe. This is
because the offender liable under the civil caning punishment will leave the
permanent physical and psychological injury scars on the body of the offender.4 In
syariah caning punishment, the whipping should not causes any long-lasting physical
scar or wound to the body of offender at the same time it should be distributed evenly
on the authorized parts of the body. Furthermore, in civil caning punishment, the
whipping is inflicted on the naked buttocks of the offender by the specially trained
officers while in syariah caning punishment, it is carried out with average intensity
and it must be avoiding the head, face and private parts.5 Besides, under the civil
caning punishment, there have two kind of cane used in the punishment. A thicker
cane is used for the convicted of serious offenses and violent crimes while a thinner
cane is used on those convicted of white collar crimes. However, in the syariah caning
punishment, the offender are canned on the back with a thin rod.6 So, it clearly shows
that the cane used in the syariah caning punishment is smaller as compared to the one
used in the civil canning punishment. Besides, the offender who punished under the
syariah caning punishment must wear clothes according to Hukum Syarak because the
Muslim scholars are unanimous that caning should be done with average intensity and
should not inflicted on the naked body but the offender of civil caning punishment
need to be naked because it can make the offender more easier to suffer the pain of
caning and let them realize what they did wrong. Hence, the intensity of the syariah
canning punishment is less severe than civil caning punishment because it can be said
that the syariah caning punishment administered intended to be shaming instead of
particularly painful. It can clearly shows that differences between civil caning
punishment and syariah caning punishment is civil caning punishment is more

4
“Rationale for Syariah whipping” ( October 7, 2018)
<https://www.nst.com.my/opinion/letters/2018/10/418929/rationale-syariah-whipping> accessed
January 23, 2020
5
Boo Su Lyn, “Don’t compare Shariah caning to whipping wunder civil law, says Malaysian Bar”
(September 05, 2018)
<https://www.malaymail.com/news/malaysia/2018/09/05/dont-compare-shariah-caning-to-whipping-u
nder-civil-law-says-malaysian-bar/1669648> accessed January 23, 2020
6
V Anbalagan, “ Lawyers: Caning for shariah offences has Parliament’s approval” (August 29, 2018)
<https://www.freemalaysiatoday.com/category/nation/2018/08/29/lawyers-caning-for-shariah-offences
-has-parliaments-approval/> accessed January 23, 2020
intensive than syariah caning punishment and caused more serious harm to the
offender.
Besides, the procedure of caning punishment also shows the differences and
similarities between civil caning punishment and syariah caning punishment. In civil
caning punishment, the Criminal Procedure Code( hereinafter refer as CPC) had states
that how the whipping is carried out. The procedures are laid down in the section 288
of the CPC to section 290 of CPC. Section 288(1) of the CPC states that the
maximum number of strokes in civil caning punishment is 24 however if the offender
is a youthful offender then the maximum number of strokes is 10.7 Beside that,
Section 287 of CPC states that the punishment cannot be carried out until after seven
days from the date when the offender was sentenced to whipping at the same time if
the offender made an appeal to an appellate court, then the sentence must be
confirmed by the court before it carried out.8 Section 288(3) of the CPC states that
the cane used must be a rattan not more than half an inch in diameter which means
shall not exceed 1.27cm.9 A cane about 1.09m long and 1.25cm thick is used for the
serious offenses. Section 289 of the CPC states that there shall be no caning to be
carried out towards women, males sentenced to death and any male who over the age
of 50 unless he has committed a sexual offence such as rape and unnatural offenses.10
The civil caning punishment is only apply to male. Section 290 of the CPC states that
the caning punishment need to required the medical officer’s certificates and the
punishment shall not be inflicted when the medical officer certifies that the offender is
not in a fit state of health to be caned.11 The medical officer must present during the
execution of a sentence of caning. Section 291 of CPC also states the procedure if the
caning punishment is cannot be inflicted. The offender shall be kept in the custody
until the court remitted the caning sentence or it can be converted to imprisonment for
a term which may extend to twenty-four months.12 The caning punishment is
administered on the bare buttocks of the offender.
However, in the syariah caning punishment, the procedure for the punishment is
point out under the Syraiah Criminal Procedure and Syariah Criminal Procedure
(Federal Territories) Act 1997. The guidelines on caning are contained in the Syariah
7
Criminal Procedure Code, section 288(1)
8
Criminal Procedure Code, section 287
9
Criminal Procedure Code, section 288(3)
10
Criminal Procedure Code, section 289
11
Criminal Procedure Code, section 290
12
Criminal Procedure Code, section 291
Criminal Procedure of each respective states. The caning must be done with average
force and intensity. It should not imposed on the naked body, on the head, face and
private parts.
Move on to the Syariah Criminal Procedure (Federal Territories) Act 1997,
section 125 and section 126 of the Act shall be applicable when the offender is liable
for the caning. Section 125(2) of the Act states that the whipping rod, excluding the
handle, shall be made from rotan or a small brance of tree without segments or joints
at the same time the length must no more than 1.22m and the thickness no more than
1.25cm.13 The syariah caning punishment is apply to both male and female offender.
Section 125(3) of the Act states that the person who carried out the whipping must be
a mature and adil person. Before the syariah caning punishment is inflicted on the
offender, the government medical officer have to certify that the offender is in a fit
state of health to undergo the sentence. If the offender is pregnant, then the execution
of the syariah caning punishment need to be postponed until the end of two months
after the delivery. Besides, the cane must be used with average force and the executor
of caning punishment cannot lifting the hand over the head then after the inflicting a
stroke, he shall lift the cane upward and not pull it. The position for a male offender to
get the infliction of caning is standing position while for female offender it is in a
sitting position. The canning can be inflicted on all parts of the body of offender
except the head, face, stomach, chest and private parts. The offender is wearing the
clothes according to the Hukum Syarak.14 Section 126 of the Act states that the
caning punishment shall not be inflicted if the offender make an appeal to the appeal
Court then when the appeal Court confirming the sentence, the caning shall be
inflicted as soon as possible and practicable.15 Hence, the procedure of caning
punishment in civil caning punishment and syariah caning punishment share the
similarities and differences. Both of them need the medical office to certify whether
the offender is in a fit state of healt. Both of these two caning punishment also need to
be postponed if the offender make an appeal to the Court. However, there also have
some differences between these two caning punishment. The civil caning punishment
is only apply to male while syariah caning punishment is apply for both male and
female. Besides, civil caning punishment need the offender to be naked buttock while

13
Syariah Criminal Procedure (Federal Territories) Act 1997, section 125(2)
14
Syariah Criminal Procedure (Federal Territories) Act 1997, section 125(3)
15
Syariah Criminal Procedure (Federal Territories) Act 1997, section 126
the offender under syariah caning punishment must wear the clothes. The length and
thickness for the cane used in the caning punishment are also different. The syariah
canning punishment is carried out by an adil and mature person while civil caning
punishment did not make any requirement under the civil law. The caning in civil law
is directly inflicted on the naked buttocks and it will leave the permanent scar and
wound on the body of offender while under the syariah caning punishment, it does not
cut the skin of the offnder and it can be done on others part of body. These are the
similarities and differences of procedure of caning punishment in civil and syariah.