Lawyers: Amendments to state enactment can go ahead

PETALING JAYA: Amendments to a Kelantan state enactment to allow for public caning can go ahead as long as the changes are not against existing provisions under federal law, lawyers said.

Constitutional expert Associate Prof Dr Shamrahayu Abdul Aziz said the state government could implement amendments to the Syariah Criminal Procedure Enactment 2002 as long as these did not contravene the Syariah Courts (Criminal Jurisdiction) Act 1965 (Act 355).

“The Syariah courts have the power to impose caning as punishment. So, if the number of lashes is not more than six, then it is fine.

“If the amendments by the state comply with Act 355, then there is no question of contravening laws,” she said. Six lashes of the rotan is the maximum number allowed under Act 355.

Dr Shamrahayu said proper places must be gazetted for public caning to be carried out, adding that the state government should properly regulate the procedures.

The state also needed to define the types of people allowed to witness the caning, she added.

Malaysian Syarie Lawyers Association president Musa Awang said the amendments did not contravene any law under the Federal Constitution, adding that these were only aimed at improving existing caning methods.

The syariah court in the state, Musa added, had the power to decide where caning for syariah offenders could be conducted.

“The maximum number of lashes is still six but the court will make the final call on whether this should be done in public or not,” he said.

Asked if the amendments contravened Section 286 of the Criminal Procedure Code that provided places to carry out whipping, Musa said this only applied to offences under the civil court.

“For offences under the syariah court, Section 125 (3) (c) of the state Syariah Criminal Procedure Enact ment 2002 is applicable,” he said.

Malaysia Muslim Lawyers Association president Datuk Zainul Rijal Abu Bakar said it was within Kelantan’s ambit to amend its own syariah state laws on how caning was to be conducted for specific offences.

The state enactment, Zainul added, had nothing to do with the proposed amendments to Act 355, which sought to increase syariah penalties.

He said the amendments were also in line with the Quran which stated that an offender was to be caned in the presence of three witnesses, a number deemed sufficient to denote “in public”.