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The Need for Revision of Whipping Punishment Procedures in Malaysia
Conference Paper · December 2021
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Ahmad Amsyar Ahmad Effendy Muhamad Helmi Md Said

Attorney General's Chambers of Malaysia Universiti Kebangsaan Malaysia
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TUANKU JA’AFAR CONFERENCE AND WORKSHOP 2021
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13-14 DECEMBER 2021
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AMINURASYED MAHPOP
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UNIVERSITI KEBANGSAAN MALAYSIA
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25 Implication of the Determination of Disaster Resilience Areas to the Substance Transformation 271
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ADIESTY SEPTHIANY
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26 Instrumen Antarabangsa dalam Mengukuhkan Peranan Pendidik bagi Melahirkan Generasi 281
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28 Issues And Challenges In The Franchise Industry 302
FIRDAUS FARID ABD RASHID

KAMARUL ARIFFIN MOHAMAD
NOR FAUZIANA MOHD SALLEH
ABDUL RASHID ABDUL RANI
KHAIRUL BARIAH CHE AMAT
SUZANA MUHAMAD SAID
29 Isu Dan Cabaran Hak Kesihatan Orang Asli Di Semenanjung Malaysia: Suatu Sorotan Kajian 315
(Issues and Challenges of Indigenous Health Rights in Peninsular Malaysia: A Literature
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NUR NABILA KHALID

MOHD SYARIEFUDIN ABDULLAH
III
30 Isu Dan Cabaran Pemakaian Prinsip “Izin, Maklum Awal, Bebas Dan Telus” (IMABT) Bagi 326
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32 Isu-Isu Undang-Undang Berhubungan Dengan Reman Di Malaysia 349

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SURENDRAN ARUNAGIRI
IFA SIRRHU SAMSUDIN
33 Jurang Perundangan dalam Kajian Hak Kesihatan Orang Asli dari Perspektif Undang-Undang 360
Antarabangsa
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NAWAL MOHAMAD AMIN

34 Justice through Legal Pluralism for Small Causes in Bangladesh at Stake 371
MOHAMMAD MAMUNUR RASHID
35 Ke Arah Sistem Pembayaran E-Dompet yang Telus dan Adil 379

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CHONG XIAO XUAN

RUZIAN MARKOM
36 Kebolehterimaan Keterangan Cap Jari di United Kingdom: Pembelajaran bagi Malaysia 400
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NUR KHALIDAH DAHLAN
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(Admissibility of Psychiatric Opinions as Evidence in Malaysia)
NEVINA RAVICHANDRAN
NUR KHALIDAH DAHLAN
38 Kedudukan Penjagaan Warga Emas dalam Undang-undang Malaysia 413
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TAN JASS KEY

IV
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AHNAF AHMAD
40 Kedudukan Undang-Undang Tentang Perubatan Tradisional Dan Komplementari Cina Di 431

Malaysia
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EMILIA TING NGUONG XUE

41 Kedudukan Undang-undang tentang Perubatan Tradisional dan Komplementari India 444

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SREE KANAPATHI NYANASEGARAN

RAMALINGGAM RAJAMANICKAM.
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44 Kesalahan Cubaan Membunuh Diri di Malaysia: Isu Dan Cabaran 471

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CALVIN CHERLEY
45 Kesalahan Jenayah Syariah Secara Maya: Isu dan Cabaran di Malaysia 486
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ROKHAIDA OMAR
ANITH NADIRAH ABU BAKAR
46 Kewajipan Suntikan Vaksin dan Isu Hak Asasi Manusia 499

(Vaccination Obligations and Human Rights Issues)

V
47 Kewajipan Undang-undang dalam Penyediaan, Penyimpanan dan Penyenggaraan Buku Rekod 510
Guru
(Legal Obligations in the Preparation, Storage and Maintenance of Teachers’ Record Books)
YOGANATHAN MANIAM
PRAKASH ADHI NARIAYAN
48 Legal and Ethical Aspects of Dental Practice in Malaysia 517
HANIWARDA YAAKOB
49 Legal Framework and Initiatives in Combating Child Labour: A Comparison Between 524
Indonesia and India
NADILA WATI
NASRULLAH
50 Legal Organization of International Commercial Arbitration in Iraq 538
AHMED WALEED HAMZAH

NUR KHALIDAH DAHLAN
ZINATUL ASHIQIN ZAINOL
51 Legal Response Towards Miscarriages of Criminal Justice in Malaysia 545
TANG JIA YEARN

52 Legal Supervision of Audit Practice in Corporate Takeovers 558
KAI LIU
HENG LI
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(Limitations on Media Freedom under the Federal Constitution of Malaysia)
HARSHINIE A/P PARANITHARAN

HAZLINA SHAIK MD NOOR ALAM
54 Literasi Undang-undang sebagai Pendidikan Asas kepada Masyarakat 581

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MUHAMMAD MUZAFFAR MOHD YAZID
NOOR ASYIKIN SHAFIQAH ATHAM MALIK
55 Low Carbon Energy Transition through Policy Advancement Using Policy-Political Aspect 593
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ALWIN LONG
MAZLIN MOHKTAR
MINHAZ FARID AHMED
56 Mekanisma Konsultansi Masyarakat dalam Aktiviti Pengambilalihan dan Pembangunan Tanah 606
Adat di Sarawak: Suatu Kajian Perbandingan dengan Undang-undang Antarabangsa
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FIONA LUTUN
ROHAIDA NORDIN
VI
57 Needed But Unwanted: Vulnerability of Domestic Workers during COVID-19 Pandemic in 619
Malaysia
SAIDATUL NADIA ABD AZIZ

SITI NUR SUHAILI ABD HARIS
58 Nilai Probatif Cap Jari sebagai Keterangan di Malaysia 629

(Probative Value of Fingerprint as Evidence in Malaysia)
KOR WEIZHEN
NUR KHALIDAH DAHLAN
59 Nilai Probatif Keterangan Pakar dari Perspektif Fiqh 639

(The Probative Value of Expert Evidence from the Perspective of Fiqh)
SYAZWAN MOHD. YUSOF

60 Normative Review of Plastic Waste Management in Indonesia 651
MASKUN
FARIDA PATITINGI
HANIM KAMARUDDIN
HASBIASSIDIQ
NURUL HABAIB AL MUKARRAMAH
SITI NURHALIZA BACHRIL
61 Peguam Negara Malaysia v Mkini Dotcom Sdn Bhd & Anor [2021] 08(L)-4-06/2020(W), FC: 673
Case Analysis on the Liability of Internet Content Provider for Contempt of Court
TEOH SHU YEE

SHAHRUL MIZAN ISMAIL
62 Pelaksanaan Prinsip “Izin, Maklum Awal, Bebas dan Telus” (IMABT) dalam Hal Ehwal 681
Berkaitan Orang Asli di Semenanjung Malaysia
(Implementation of the Principle of “Free, Prior and Informed Consent” (FPIC) in Orang Asli
Affairs in Peninsular Malaysia)
SYAHIRAH NADIAH AHMAD

ROHAIDA NORDIN
63 Pelaksanaan Undang-undang Pengawalan Penyakit Berjangkit dan Pematuhan Tatacara 694

Pengendalian Piawai Sepanjang Perintah Kawalan Pergerakan
(Implementation of Infectious Disease Control Laws and Compliance with Standard Operating
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NURSYAYAANI MOHD SALLEH

64 Pemanduan Di Bawah Pengaruh Alkohol: Kedudukan Undang-Undang Malaysia 706

(Driving Under the Influence of Alcohol: The Position of Malaysian Law)
JUAN SING RU
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65 Pemansuhan Kesalahan Jenayah Penggunaan Dadah Sebagai Alternatif Dalam Menangani 719
Masalah Dadah Di Malaysia
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66 Pemerkasaan Perundangan Akta Kebajikan Haiwan 2015 730

(Legislative Empowerment of the Animal Welfare Act 2015)
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67 Penentuan Identiti Kebangsaan Mengikut Kerangka Undang-undang di Malaysia 744

(Determination of National Identity According to the Legal Framework in Malaysia)
DARRSHINI MURGAN
YOGANATHAN MANIAM
SHARMIN KUTTY SIVARAMAN
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68 Pengabaian Penjagaan Warga Emas yang Menghidap Demensia, Khususnya dalam Urusan 756
Rawatan Perubatan dari Perspektif Undang-Undang
(Neglect of Care of the Elderly with Dementia, Especially in Medical Treatment from a Legal
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69 Pengiktirafan Kedudukan Perkahwinan Adat Hindu di Sisi Undang-undang Malaysia 768

(Recognition of the Position of Hindu Customary Marriage in Malaysian Law)
VINOSHEN RAVEENTHARAN
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(Assessment of the Position of Illegally Obtained Evidence in Malaysia)
KANAGARAJ KARUNANITHI
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VIII
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CHUNG LE HONG AN
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MOHD SYUKRI YEOH ABDULLAH
AHMAD BAZRI MOKHTAR
AMINURASYED MAHPOP
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Penyiasatan (Inquisitorial)?
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MOHD ELFIQ RIDHZUAN
AIZAT HASBULLAH AMINUDDIN
AISYAH JA’AFAR
ELIE SHAHANA EMBROS
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81 Reman Di Malaysia: Kedudukan Undang-Undang Reman Berantai 891
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IFA SIRRHU SAMSUDIN

ROHAIDA NORDIN
82 Reviewing the Legal and Ethical Aspects of Traditional Herbal Medicines with Emphasis on 901
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GAN CHING CHUAN

USHARANI BALASINGAM
AZLINA NADZRI
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DAVID BRIAN LEONG RETNA

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GHASSAN ADHAB ATIYAH

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Malaysia
JADY @ ZAIDI HASSIM

AMIRUL IMAN DOLLAH
86 Takaful Sebagai Alternatif Jaminan Keadilan Kecederaan Jenayah di Malaysia 947

(Takaful as an Alternative to Criminal Injury Justice Guarantee in Malaysia)
NOOR ASYIKIN SHAFIQAH ATHAM MALIK

RUZIAN MARKOM
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BAREQ MUNTADHER ABDUL WAHHAB

88 The Differences in Housing Purchasing Power between Low and Medium Groups in Malaysia 968
MAZLIZA MOHAMAD
RICCO SURVIVAL YUBAIDI
RAHMAH ISMAIL
SUZANNA MOHAMED ISA
89 The Legal Duties of Traditional and Complementary Medicine Practitioners under the 976
Traditional and Complementary Medicine Act 2016.
AZLINA NADZRI
RAHMAH ISMAIL
X
90 The Need for Revision of Whipping Punishment Procedures in Malaysia 985
AHMAD AMSYAR AHMAD EFFENDY

91 The Return of Intergenerational Justice: Justifying New Social Contract for Orang Asli 997
AL HANISHAM MOHD KHALID

ROHAIDA NORDIN
92 The Role of Government Policies in Achieving Just and Sustainable Islamic Banking 1006
Institutions in the New Norm
WHILEA IRMA NORDIN

RUZIAN MARKOM
93 The Status of Mercenary in Non-international Armed Conflicts: A Case Study of the Libyan 1018
Armed Conflict.
SALEM AESSA FARHAT

FARIDAH JALIL
ROHAIDA NORDIN
94 The Use of Gold Dinar and Silver Dirham Coins in Indonesian Criminal Law 1027
AHMAD SOFIAN
MAQDIR ISMAIL
ERLANGGA KURNIAWAN
ZAIM SAIDI
XI
Proceedings of the TUANKU JA’AFAR CONFERENCE AND WORKSHOP 2021 (TJC 2021)
Access to Justice: Substantive & Procedural Issues
(Virtual Conference)
The Need for Revision of Whipping Punishment Procedures in Malaysia
AHMAD AMSYAR AHMAD EFFENDY

Faculty of Law
Universiti Kebangsaan Malaysia
ABSTRACT
Whipping is an example of criminal sentences applied in the Malaysian criminal justice system since colonial era
alongside the capital punishment, imprisonment and fine. Some people think that this specific type of punishment should be
abolished because of its harshness in nature. Furthermore, both Malaysian Civil and Shariacriminal procedures provide
the methods of implementing such punishment towards the convicts who committed criminal offences as stipulated under
certain legal provisions. Nonetheless, there is nonuniformity of such methods prescribed under Civil criminal procedure
compared to Shariacriminal procedure. This study aims to identify the differences of whipping punishment methods
between these two classifications of local law; and suggest the revision of laws in standardising the methods to execute
such punishment. Qualitative approach is utilized in this study by way of analytical and critical to study the provisions of
local and foreign laws, opinions of Islamic law, academic journals, theses and electronic papers. This paper comprised
the following discussions - brief introduction on whipping punishment; a comparative study between the methods
prescribed under Criminal Procedure Code, Syariah Criminal Procedure (Federal Territories) Act 1997 alongside related
rules; and evaluation of whipping punishment procedures applied in other foreign states. As a result, it was found that the
methods prescribed under Shariacriminal procedure are more humane compared to Civil criminal procedure in terms of
physical and emotional effects towards the criminal offenders alongside fulfilling the need for deterrence and public
education. Therefore, several amendments to the Criminal Procedure Code and related rules are crucial in revising and
standardising the methods of whipping punishment in accordance with Shariacriminal procedure to uphold the
compassionate way of sentencing the convicts.
Keywords: criminal sentence, whipping, methods, criminal procedure, Sharia, revision
INTRODUCTION
“Law is the command of the sovereign backed by sanctions; the sovereign is the person or institution whom the people
have the habit of obeying.”
(Austin, n.d.)
This well-known definition of law was purported by John Austin, a British legal philosopher highlights the significant
power of the sovereign in determining the laws and punishments for those who disobey it.There are various types of
criminal sentences that can be found around the globe as prescribed either under local or international criminal law.
According to Altman (2021), the most basic element of sentencing is the fact that it involves some kind of imposition,
inconvenience, distress, sanction, harm, suffering, evil, or burden.Thus, criminal sentence could be generally understood as
the legal penalty imposed against those who found guilty of certain criminal actions.
Furthermore, objectives of punishment are specifically described in the leading case of Regina v Sargeant(1974) 60 Cr
App R 74. According to Lord Lawton J:
985
“What ought the proper penalty to be? We have thought it necessary not only to analyse the facts, but to apply to those
facts the classical principles of sentencing. Those classical principles are summed up in four words: retribution, deterrence,
prevention and rehabilitation… .”
These objectives of punishment become the guiding principles for the legislative drafters and legislature to enact criminal
laws enforceable in their state.Furthermore, the death penalty is still retained as one of key criminal punishments in
Malaysia as a form of retribution against the offenders. Nevertheless, this type of punishment is strongly opposed
byseveral human rights bodies and NGOs which they called for its abolishment. According to National Human Rights
Commission of Malaysia (SUHAKAM) (2021), they have advocated for the total abolishment of death penalty in Malaysia
since 2006 alongside engaging numerous stakeholders and conducting advocacy programmes to raise awareness about this
current focus area of human rights.
In addition to that, whipping is another type of punishment prescribed for the commission of certain criminal offences in
this country. The offences concerned are, among others, voluntary causing hurt by using dangerous weapons or means (s.
324), rape (s. 376) and theft (s.379) as specified in the Penal Code.Moreover, the Syariah Criminal Offences (Federal
Territories) Act 1997 stipulated whipping punishment against several sexual offences like liwat (sodomy) and musahaqah
(lesbianism). Such punishment for the commission of these two offences, although similarly provided under Penal Code
too, have two different set of procedures compared to each other (Civil and Sharia). Hence, this paper aims to identify the
differences of whipping punishment methods between these two classifications of local law and suggest the revision of
laws in standardising the methods to execute such criminal punishment.
LITERATURE REVIEW
In this study, the whipping punishment is discussed from both Civil and Islamic law perspectives. These sources of law are
essential as the key guidance for some states that prescribe this punishment in their penal codes including Malaysia.
Furthermore, this punishment procedures are compared from one state to another to identify the best methods in executing
such punishment. The human rights aspect also considered to find out the less severe methods towards the offenders.
Hence, this literature review suggests that Sharia whipping punishment procedures are more humane compared to Civil
one in line with the human rights principles which prohibits torture.
First and foremost, whipping punishment is one of the well-known criminal sentencing methods imposed against the
convicts. According to Black’s Law Dictionary (2004), whipping means a method of corporal punishment formerly used
in England and a few American states, consisting of inflicting long welts on the skin, esp. with a whip. In addition, Abbott
(n.d.) defines whipping as a beating administered with a whip or rod, with blows commonly directed to the person’s back.
On the other hand, the “corporal punishment” term is also used interchangeably with whipping to describe such acts. It is
derived from the Latin word of corporalis which means “relating to the body” (Dewan Bahasa dan Pustaka 2017).
Richards & Curzon (2011) suggested the definition of corporal punishment as physical chastisement of a convicted
offender. Moreover,Durnian (2016) stated that whipping (or flogging) is a normal practice of criminal sentencing towards
men and women in the early days of colonial Australia alongside becoming an instrument of social control since ancient
times.Furthermore, Tiwari & Agarwal (2020) purported that this criminal sentencing method is varied on this very day
compared to before as it is only imposed against violent crimes perpetrators which is carried out by the authorities in
private area rather than public area to prevent public criticism.However, these definitions are not exhaustive as there are
several different methods prescribed by the authorities in certain states to execute such punishment.
On top of that, the execution of whipping punishment is highly debated especially from the human rights perspective. It is
because every single human on Earth is entitled to protection from torture or degrading punishment which, undeniably,
closely related with the nature of whipping punishment as enshrined under Article 5 of the Universal Declaration of
Human Rights 1945 (UDHR). In addition, this prohibition is also upheld by the Member States of Organisation of Islamic
Conference (OIC) as provided under Article 4(b) of the Cairo Declaration of the Organization of Islamic Cooperation on
Human Rights in Islam 1990 (CDHRI). According to Odeyinde (2020), corporal punishment could inflict physical pain
towards children and consequently leave devastating effect towards their bodies and emotions. It is supported by a study
conducted by Maiti (2021) which expressed that although such punishment could affect positively in correcting the
behavioural characteristics of the child, yet it still leaves negative effect that cause the previously stated characteristics
becomes more worsened. Moreover, women from Hamer tribe in Ethiopia also had to endure physical pain due to being
whipped during “bullah”, a bull jumping ceremony in celebrating their young boys’ entrance to manhood (Fiseha 2021).
This practice is unacceptable and strictly prohibited under several international treaties such as Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (CAT) and Convention on the Elimination
of All Forms of Discrimination against Women 1979 (CEDAW) which Ethiopia has acceded or ratified to and
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consequently, the state must take necessary measures to obliterate the practice. In sum, whipping punishment or practice is
considered as harmful and cruel from the human rights perspective based on the discussion above.
In addition, Malaysia is one of the statesthat still retains whippingas a criminal sentencingmethod under both Civil and
Sharia criminal procedures.For the time being, whipping is carried out in private spaces administered by Malaysian Prison
Department (JPM)pursuant to the pronunciation of such punishment by the judges. In 2014, Syariah Court of Tawau had
become the instance where the first administration of public whipping against a convicted male Sharia offender
(intoxication of alcohol) witnessed by 40 people that received various positive and negative responses from the public.
According to Siti Zubaidah Ismail (2006), the Syariah court judges should understand several relevant statutes
holisticallybeforesentencingtheSharia criminal offenders to whipping. This is crucial to ensure its implementation in
accordance with the respective criminal procedural laws. Furthermore, Yuhanza Othman, Ida Rahayu Mahat& Ekmil
Krisnawati Erlen Joni (2015) opined that there is an urgent need to adopt whipping punishment to curb relapse of drug
reliance and increment of new cases involving drug dependents. This shows that certain offences require serious form of
punishment like whipping which should be acceptable in protecting public interest.It is supported by a study carried out by
Nurul ‘Izzati Mohamad (2015) who illustrated that “khalwat” (close proximity) is prohibited under Islamic law as it is
regarded as a pathway to committing “zina” (adultery) and therefore, serious punishment like whipping is essential to
promote awareness among the offenders and society. It is further explained that the commission of adultery itself is
punishable with whipping under localSharia penal code in respective Malaysian states which may be a valid reason to
support the imposition of whipping against offenders convicted with “khalwat” offence by the Syariah court.
Based on this literature review, apparatus and methods used is different from one country which prescribed such sentence
to another. On top of that, there is a gap of knowledge that was found in terms of identifying the best and humane methods
of executing whipping punishment rather than abolishing it completely. This writing objects to loosen the knowledge gap
and provide the best solutions to achieve research objectives.
METHODOLOGY
In general, this study is academically related to the principles of sentencing and criminal justice.Therefore, qualitative
approach is utilized to conduct the study on need for revision of whipping punishment procedures in Malaysia. To be
specific, analytical and critical methods are used to examine the legal provisions under several local statutes, namely,
Criminal Procedure Code, Syariah Criminal Procedure (Federal Territories) Act 1997 and Prisons Regulations 2000.
These research methods aim to understand or explain or deriving conclusions from the subject (Anwarul Yaqin 2007).
Furthermore, a number of sources such as opinion of Islamic law, academic journals, theses and electronic papers are also
referred to discuss the issues pertaining to whipping punishment methods especially from the perspectives of law, criminal
justice and human rights. In addition, four foreign criminal procedural laws in Singapore, Aceh Autonomous Province
ofIndonesia, Bangladesh and Tanzania are also compared with the Malaysian statutes prescribed above to identify
similarities and differences of whipping punishment methods.In other words, comparative method is implemented by
comparing two subjects in finding any likeness and/or distinction between these two (Anwarul Yaqin 2007). In conclusion,
qualitative approach based on these methods (analytical, critical and comparative) is suitable to carry out this study in
achieving two research objectives stated above.
RESULTS AND DISCUSSION

At the present time, only several states that still prescribe whipping as a form of criminal sentences, among others,
Malaysia, Singapore, Brunei, Indonesia (Aceh Autonomous Province), Bangladesh and Tanzania.As far as the
implementation of whipping punishment is concerned, theyare prone to criticisms by otherstateswho have abolished such
sentence alongside several international human rights organisations such as Amnesty International and Human Rights
Watch.It is because whipping seems to be cruel and inhumane as it leaves negative physical and emotional effects towards
the convicts. Nevertheless, these severe outcomes may be avoided if the procedures to implement such punishment are
determined by considering several aspects such as apparatuses and techniques used, place of execution alongside physical
and emotional conditions of the convicts. Further discussion on this matter is separated into several subtopics as below.
CIVIL WHIPPING PUNISHMENT PROCEDURES IN MALAYSIA
Whipping sentence may be passed by the Magistrate’s and Sessions Court against the accused who are found guilty under
certain criminal offences as provided under Section 64 and 87(1)(c) of Subordinate Courts Act 1948. The High Court also
has the jurisdiction to pass the similar sentence pursuant to Section 22(2) of Court of Judicature Act 1964.In exercising
such power to pass the sentence, the respective Magistrate or Judge must also take into account the conditions and
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requirements prescribed under Criminal Procedure Code (“CPC”). To be specific, Section 286 of CPC empowers the court
to determine the place and time of execution if the convict is sentenced to whipping only and it shall be abided. On the
other hand, if the convict is sentenced to both imprisonment and whipping, the latter shall be executed as soon as
practicable after the expiration of certain days of imprisonment from the sentence date as provided under Section 287(1)
and (2) of CPC.This is reasonable as to provide chance for the convict to file an appeal against the sentence and if the
appellate court sustain it, the sentence must be carried out as soon as practicable too. Furthermore, the modes of executing
such punishment can be simply explained according to the respective Subsections under Section 288 of CPC as follows:
(1) The number of whipping strokes shall be specifically stated in the sentence. Maximum number of strokes that can be
passed against the adult offenders is twenty-four (24) strokes while the youthful offender may be sentenced to
whipping up to ten (10) strokes.
(2) The body part where the whipping shall be inflicted is determined generally by the Minister responsible for public
order (typically the home minister). In addition, Regulation No. 131(4) of Prisons Regulations 2000 specified the
buttocks of the offender as the body part where such punishment shall be inflicted.
(3) The diameter of rattan used for the punishment must be less thanhalf an inch or 1.25 cm as specified under Regulation
No. 131(5) of Prisons Regulations 2000.
(4) The offender convicted of certain offence(s) under section 403, 404, 406, 407, 408, 409 or 420 of the Penal Code or
the youthful offender shall be whipped with a light rattan in the way of school discipline. This is also specified under
Regulation No. 131(5) of Prisons Regulations 2000.
(5) If the offender is convicted of two or more different offences punishable with whipping within the similar trial, the
court must ensure the sentence passed is not more than twenty-four (24) strokes against the adult offenders and
ten(10) strokes against the youthful offenders.
On top of that,Section 289 of CPC provides that whipping shall not be carried out in deferred manner alongside several
groups of people cannot be sentenced to whipping like females, males who are sentenced to death and elderly males aged
50 years old and above except those who are convicted under several sexual offences. In addition, Section 290 of CPC
provides that The Medical Officer’s certificate is also required to acknowledge the state of adult or youthful offender’s
health and the whipping execution must be stopped if the Medical Officer verifies that his state of health shows unfitness
to withstand the remaining strokes. Last but not least, Section 291 of CPC grants the power to the court to either remit the
whipping sentence or sentence the offender to imprisonment up to two (2) years only in the case where such sentence is
prevented from being executed either wholly or partially as read together with previous Section. In sum, these are the
procedures prescribed by the local law for the execution of Civil whipping punishment against the offenders.
SHARIA WHIPPING PUNISHMENT PROCEDURES IN MALAYSIA
In contrast, procedures in executing Sharia whipping punishment consist of several differences compared to the Civil one.
The main legislation that prescribes these is Syariah Criminal Procedure Act (applicable in Federal Territories) or Syariah
Criminal Procedure Enactment/Ordinance (applicable in other States of Malaysia). For the purpose of this study, only the
Syariah Criminal Procedure (Federal Territories) Act 1997 (“SCPA”) will be referred and discussed under this part of the
article.Normally, Sharia whipping punishment is imposed towards the offenders convicted of false doctrine, adultery,
prostitution and incest as criminalizedin theSyariah Criminal Offences (Federal Territories) Act 1997. However, Section 2
of Syariah Courts (Criminal Jurisdictions) Act 1965 (Act 355) limits the whipping punishment according to Sharia
jurisdiction up to six (6) strokes only and this is applicable to all states. As far as the criminal jurisdiction is concerned,
both High and Subordinate Syariah Court are empowered to pass whipping punishment against the convicted persons by
virtue of Section 46 and 47 of Administration of Islamic Law (Federal Territories) Act 1993. In general, Section 125 of
SCPA prescribes the procedures regarding the execution of Sharia whipping punishment which can be easily described
according to the respective Subsections as follows:
(1) Procedures of Sharia whipping punishment are subject to provisions under this Section and Section 126 of SCPA
regarding time of executing such punishment (shall not be inflicted unless the appellate court affirms the trial court
decision after the offender filed an appeal alongside shall be executed as soon as applicable after the former affirms
and grant the similar order).
(2) The whipping rod used to whip the offender shall be produced either from rattan or small branch of a tree without
segment or joint. Its length shall not be more than 1.22 m (122 cm) while its thickness shall be 1.25 cm or less.
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(3) The prescribed procedures are, among others:
(a) A Government Medical Officer must certify that the offender is in fit state of health to face the sentence;
(b) A pregnant convict shall not be whipped until two months after childbirth or miscarriage;
(c) The place of execution shall be either one directed by the Court or determined by the Government for such purpose
and a Government Medical Officer shall be there during the execution;
(d) Only “adil” (just) and mature person can be appointed as the whipper;
(e) The whipper must carry out the punishment with average force and without raising his hand over his head to avoid
injury on the offender’s body (skin cut);
(f) After a stroke inflicted, the whipping rod shall be lifted above rather than be pulled;
(g) The infliction may be on any offender’s body part except the face, head, stomach, chest or private parts;
(h) The offender shall wear Sharia-abiding clothes during the execution;
(i) The male offender shall be whipped in a standing position while the female offender shall be whipped in a sitting
position;
(j) The execution shall be postponed if the Government Medical Officer verifies that the offender could not withstand it
any longer until he or she is deemed fit by such officer to face the remaining strokes.
(4) The offender who is sentenced to whipping only shall be dealt like ones who is sentenced to both imprisonment and
whipping until the execution completes.
(5) The offender’s condition such as old age (50 years old and above), illness or any other reason that disabled him from
being whipped, with certification by a Government Medical Officer, may still face the sentence subject to the court’s
order which prescribed the reasonable technique to execute so.
Based on the explanations above, Sharia whipping punishment procedures seem to be more particular compared to the
Civil one especially in terms of the whipping rod’sfeatures, body part(s) involved and the whipper’s conditions. It is
suggested that the former one is prescribed by considering various aspects such as health and human dignity before it can
be carried out.In brief, both Civil and Sharia whipping punishment procedures are different from each other in several
aspects like techniques used by the whipper and condition of the offender during the execution.
COMPARATIVE STUDY ON WHIPPING PUNISHMENT PROCEDURES IN FOREIGN STATES
WHIPPING PUNISHMENT PROCEDURES IN ACEH AUTONOMOUS PROVINCE, INDONESIA
Aceh Autonomous Region is the only region in Indonesia that applies Islamic law and incorporates it under its written
laws.At the moment, Aceh still retains whipping as the punishment against offenders who are convicted of several Sharia
criminal offences such asproximity, adultery, consuming alcoholic drinks, and gambling. A number of statutes and
directive orders have been issued by the Governor of Aceh with regards to implementation of whipping punishment,
namely, Governor’s Order No. 10 of 2005 on Whipping Punishment Techniques Guidelines 2005 (Order No. 10), Aceh
Code No. 7 of 2013 on Criminal Procedure (Code No. 7), Aceh Code No. 6 of 2014 on Criminal Law (Code No. 6), and
Governor’s Order No. 5 of 2018 on the Execution of Criminal Procedure (Order No. 5).The earliest generally stipulates the
methods of executing the punishment under several Clauses which can be briefly explained as below:
Clause 1(10). The whipping rod used must be made from rattan; 0.75 to 1 cm in diameter; 1 m in length; without multi-
edges; and has the hand grip.
Clause 4(1). The punishment has to be carried out in public spaces and could be watched by attending people (repealed last
year).
Clause 4(4). The infliction must be on the back of body parts (from shoulders to buttocks).
Clause 5. The offender must be examined first by a doctor to determine whether he or she is fit in health to undergo the
punishment. In the case where the offender is not fit to be whipped, the punishment must be postponed to latter time when
he or she is fit to undergo so.
Clause 9. The offender must wear thin clothing prepared which covering their awrah. The males must be whipped in
standing position without any support while the females must be whipped in sitting position.
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Clause 11. The whipping procedures must be discontinued for a while in the case where the offender suffered injuries;
ordered by the doctor-in-duty based on medical consideration; and the offender escapes from the whipping area before the
sessionfinishes.
Nonetheless, these procedures are not conclusive at the moment as some legal provisions regarding the implementation of
such punishment seem to be overridden by the Order No. 5 that supersedes the previous ones. Furthermore, the procedures
on how the whipping punishment should be executed is not prescribed until today although the Aceh authorities have
signed a memorandum of understanding (MoU) with the Indonesian Ministry of Law and Human Rights
(KEMENKUMHAM) pursuant to Clause 30(4) concerning this matter. This situation caused the punishment cannot be
implemented due to the inexistence of latest guidelines on the whipping punishment procedures especially at Idi IIB Class
Correctional Centre, Aceh (Eka Priyatna in Fajar Adi Putra 2021). Key amendment introduced under Order No. 5 is the
whipping place should be at the correctional or national detention centres rather than open areas, yet the public still can
watch the punishment procedures except the children below 18 years old.
WHIPPING PUNISHMENT PROCEDURES IN THEPEOPLE’S REPUBLIC OF BANGLADESH
Bangladesh is one of the Commonwealth states that inherited the legal system based on Common Law from British as
similar to Malaysia.Numerous criminal offences are prescribed under its Penal Code 1860 and some of them are
punishable with whipping. Two legislations specify the whipping punishment procedures in Bangladesh which are the
Code of Criminal Procedure 1898 (“CCP”) and Whipping Act 1909 (“WA”) applicable throughout the state. According to
Section 2 of the latter, the offenders are also liable to be sentenced to whipping other than ones prescribed under Section
53 of CCP, among others, death, imprisonment, and fine.Furthermore, Section 3 and 4 of WA stipulate certain offences
that are punishable with whipping instead of or in addition to other punishments such as theft, lurking house-trespass, rape
and dacoity (an act of violent robbery by an armed gang). As far as the whipping punishment procedures are concerned,
the legal provisions under CCP can be briefly explained as follows:
Section 390. Any convict who is sentenced to whipping only shall be subjected to provisions under Section 391 and the
Court may direct the time and place of execution.
Section 391(1). The whipping punishment shall be carried out either starting 15 days after the date of sentence or as soon
as practicable once the appellate court grants an order affirming the sentence decided by the trial court in the case where
the convict filed an appeal.
Section 391(2). The punishment shall be carried out in the presence of officer in charge of the jail unless the presence of
the Judge or Magistrate is ordered by any of them.
Section 392(1). The whipping rod used to whip the convicts aged sixteen (16) years old and above shall be a light rattan
with minimum diameter of 0.5 inches while the offenders under such age shall be sentenced to whipping subject to mode,
body part and instruments directed by the Government.
Section 392(2). The maximum number of strokes inflictable towards the convicts aged sixteen (16) years old is thirty (30)
strokes while the offenders below that age may be sentenced to whipping up to fifteen (15) strokes.
Section 393. The whipping punishment cannot be carried out in instalments. Furthermore, three groups of people are
exempted from the punishment which arethe females, males sentenced to death or imprisonment more than five years, and
males aged forty-five (45) years old and above subject to the Court’s consideration.
Section 394(1). Certification of the offender’s fitness to undergo the whipping punishment by a medical doctor is required
before the punishment can be carried out. In the case where the doctor is not present, the Magistrate or officer present may
also determine such matter.
Notwithstanding the legal provisions described under CCP and WA above, the procedures on how the whipping
punishment can be carried out particularly on the techniques used by the whipper, inflictable offender’s body parts, and the
length of the whipping rod are not specified. On the contrary, Section 53(2) of the Prisons Act 1894 states that any
prisoner who commit prison-offences such as any assault or use of criminal assault, immoral or indecent or disorderly
behaviour et cetera as stipulated under Section 45 of the similar Act shall be whipped on his buttocks with a light rattan
while for the offenders below the age of sixteen (16) years old shall be whipped according to school discipline method
with a lighter rattan.This provision suggests that the common offender’s body part where the whipping inflicted is the
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buttocks. Therefore, the whipping punishment procedures applied in Bangladesh is basically based on the Civil method
that is currently used in Malaysia.
WHIPPING PUNISHMENT PROCEDURES IN THE ISLAMIC REPUBLIC OF IRAN
As similar to Aceh Autonomous Region of Indonesia, Iran also adopts Sharia as the key source in law applicable in its
state by virtue of Article 4 of the Constitution of Islamic Republic of Iran especially relating to penal laws.The Islamic
Penal Code of 2013 prescribes hududpunishment(the punishment mandated by Allah the Almighty through His
revelations) of whipping against the offenders who are found guilty of numerous offences, among others, adultery,
sodomy, lesbianism, procuring people to commit sex, false accusation of sexual offences and consuming alcoholic
drinks.As a general rule, the number of strokes inflictable towards the offenders are in accordance with Islamic principles
for each respective offence. In addition, Directive on Implementation Regulations for Sentences of Retribution-in-Kind,
Stoning, Murder, Crucifixion, Death Penalty, and Flogging 2003 (Directive) provides certain procedures on how this
punishment must be executed in Iran which can be simply described as follows.
Article 122. The whipping apparatus used should be a twisted leather band with a length of 100 to 120 cm and
approximate diameter of 1.5 cm without knot.
Article 123. The infliction may be on any offender’s body part except the front of the body, face, head, neck,and private
parts.
Article 127. The whipping must be carried out before the judge and his representative shall count the strokes inflicted
against the offender. In case of such numbers are in doubt, majority decision on specific number will applies and after the
procedures end, the minutes are taken and signed by the judge, whipper, and offender, so the case is attached.
Article 130. If the offender claims that there is a medical condition that prohibits him or her to undergo the punishment,
the judge must refer the offender to a medical officer to determine such matter. If such condition could be cured, the
punishment will be postponed until the recovery.
Article 131. The partial whipping of female offender shall be inflicted on the back of her body from shoulder to the lower
back in an equal and decentralized manner. She must wear clothes which cover her body and the punishment must be
carried out by an experienced female whipper without presence of any man excepts where the court is determined as the
place of execution.
Article 132. The partial whipping of male offender shall be inflicted on the back of his body from shoulder to ankle in an
equal and decentralized manner and standing position. He must not wear any cloth other than a veil during the execution of
punishment if he is convicted of adultery, sodomy, and consuming alcoholic drinks while he can do so if he is convicted of
false accusation of sexual offences.
To sum up, the whipping punishment procedures in Iran are implemented based on the Islamic principles of criminal law
especially the hudud. The number of strokes inflictable towards the convicts are also in accordance with such law. Despite
of such legal provisions, Iran still faces criticism from human rights organizations such as Global Partnership to End
Violence Against Children which initiated “End Corporal Punishment” and Amnesty International which describes the
punishment implemented in that state as brutal and exposed a sort of inhumane legal system (Amnesty International
2017).Moreover, the UN Human Rights Committee during its 103rd session in 2011 also purported its concern on judicial
and administrative corporal punishment imposed in criminal cases and recommend Iran to abolish such punishment by
amending the Penal Code (Human Rights Committee 2011).
WHIPPING PUNISHMENT PROCEDURES IN THE UNITED REPUBLIC OF TANZANIA
Last but not least, Tanzania is also a state that still retains whipping as a criminal punishment method. Its procedures are
governed by the Corporal Punishment Act 2019 (“CPA”) and Prisons Act 1967.Additionally, the Penal Code also
stipulates certain offences that are punishable with whipping such as rape, act of gross indecency, robbery, and earning
profits from prostitution activities in accordance with procedures prescribed under CPA. There are several Sections
concerningit that can be simply explained as follows:
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Section 2. The interpretation of “adult” is a person aged sixteen (16) years old and above compared to “juvenile” which
means otherwise. This provision also differentiates between the usage of word “whipping” and “canning” according to the
respective age of the offender.
Section 8(1). Corporal punishment must be carried out towards the adult offenders irrespective whether he has or has not
attain forty-five (45) years old.
Section 8(2). Maximum number of strokes inflictable against adult offenders is twenty-four (24) strokes while the canning
towards the juvenile offender can be inflicted only up to twelve (12) strokes.
Section 8(3). The corporal punishment cannot be carried out by instalments.
Section 8(4). The punishment cannot be carried out in public unless the court deems it necessary. However, this exception
is not applicable in executing canning towards the juvenile offenders.
Section 9. The whipping methods, inflictable body parts and apparatus used shall be implemented according to presidential
orders that may be issued by the President of Tanzania.
Section 13. The punishment must be carried within six (6) months from the date of sentence passed or, in case of appeal
filed to the appellate court, from the date of such appeal was resolved of.
Section 15. The punishment shall be carried out in the presence of a medical officer or in the case unavailable, any person
with highest level of medical background who shall certify that the offender is fit to undergo the punishment.If the medical
officer determines otherwise including when the punishment is being executed, it must be stopped immediately. Besides,
the district magistrate, and administrative officer or a prison ranked assistant superintendent and above also shall be
present to supervise the execution of such punishment.
In brief, whipping punishment procedures in Tanzania is legally regulated by its key legislation, Corporal Punishment Act
2019. Nevertheless, it is not all-inclusive as the specific procedures in terms of methods, inflictable body parts and
whipping instruments that can be utilized are not prescribed under the similar Act.Moreover, these are still vague due to
inexistence of aforementioned presidential order to be accessed and analysed in determining whether Tanzania adopts
Civil or Sharia methods of executing whipping punishment.
COMPARISON AND ANALYSIS

TABLE 1. Comparison of whipping punishment procedures applied by different states.
Details / Malaysia Aceh, Bangladesh Iran Tanzania

States Indonesia
Key • Criminal • Aceh Code • Code of • Islamic • Corporal
Legislation(s)/ Procedure No. 7 of Criminal Penal Code Punishm
Regulation(s) Code 2013 on Procedur of 2013 ent Act
(Civil) Criminal e 1898 • Directive on 2019
• Prisons Procedure) • Whippin Implementat
Regulatio • Aceh Code g Act ion
n 2000 No. 6 of 1909 Regulations
(Civil) 2014 on for
• Syariah Criminal Sentences of
Criminal Law Retribution-
Procedure • Governor’s in-Kind,
(Federal Order No. Stoning,
Territorie 5 of 2018 Murder,
s) Act on the Crucifixion,
1997(Sha Execution Death
ria) of Criminal Penalty, and
Procedure Flogging
2003
Classes of Civil: Both males Adult and Both males and Adult and
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Offenders Adult and and females. youthful females. juvenile

youthful males only males only.
males only excluding
excluding elderly
elderly persons and
persons and males
males sentenced
sentenced to to death.
death.
Sharia:
Both males
and females.
Place of Civil: Correctional Jail Public or Public or
Execution Prison ornational compound. private areas private
compound. detention except for the areas with
centres’ women where exception
Sharia: compound. the punishment to the
The court or must be carried juvenile
government out by female offenders
may direct officers and which the
(usually the without the sentence
prison presence of any must be
compound). male. carried out
in private
areas only.
Whipping Civil: A rattan with A light A twisted Not
Apparatus The rattan 0.75 to 1 cm rattan with leather band specified
used must be in diameter; 1 minimum with a length of under the
less than half m in length; diameter of 100 to 120 cm legislation
an inch or and hand grip 0.5 inches and but may be
1.25 cm. without multi- towards the approximate prescribed
edges. adult diameter of 1.5 by the
Sharia: offenders cm without President
A rattan or while the knot. of
small branch mode, body Tanzania
of a tree parts and through
without instruments presidential
segment or are subject order.
joint with to
length not government
more than regulations
1.22 m (122 for the
cm) and youthful
thickness not offenders.
more than
1.25 cm.
Inflictable Civil: The back of Not Any offender’s Not
Body Parts Buttocks. body parts specified body part specified
(from under the except the front under the
Sharia: shoulders to regulations. of the body, legislation
Any buttocks). face, head, but may be
offender’s neck,and prescribed
body part private parts. by the
except the President
face, head, of
stomach, Tanzania
chest and through
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private parts. presidential

order.
Whipping Civil: Not specified Not Not specified Not
Techniques The under the specified under the specified
punishment regulations under the regulations but under the
carried out but commonly regulations. commonly legislation
with above used the used the Sharia but may be
average force Sharia techniques. prescribed
and with the techniques by the
whipper’s President
hand raised of
over his Tanzania
head. through
presidential
order.
Sharia:
The
punishment
carried out
with average
force and
without
raising the
whipper’s
hand over his
head to avoid
injury on the
offender’s
body (skin
cut). After a
stroke
inflicted, the
whipping rod
shall be lifted
above rather
than be
pulled.
RECOMMENDATION AND CONCLUSION

Based on the discussions above, there are two main procedures of executing whipping punishment towards the criminal
offenders, namely, Civil and Sharia methods. The Civil methods are generally applied in Bangladesh and Tanzania
compared to Aceh Autonomous Region in Indonesia and Iran where the Sharia methods are upheld. On top of that,
Malaysia adopts both methods to be sentenced against persons convicted of specified criminal offences as provided under
Criminal Procedure Code and Syariah Criminal Procedure (Federal Territories) Act 1997. Nonetheless, it is purported that
Civil methods are harsher compared to Sharia methods in terms of physical and emotional effects towards the offenders.
Furthermore, the scars will remain on the inflicted body part for a long time due tosevere impact from the infliction.This is
the focal point argued by the human rights organisations and certain states in calling for the total abolishment of such
punishment on the world alongside it goes against the human rights principles enshrined especially in the Universal
Declaration of Human Rights 1945 and Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment 1984.As the alternative, it is strongly suggested that Civil punishment methods be revised and standardized
according to the Sharia methods on the basis of SCPA generally follows the Sharia principles. For example, the whipper
cannot raise his hand over the head and the force inflicted towards the offender’s body part must be moderate in nature as
stipulated under Section 123(3)(e) toprevent death or serious bleeding or blisters on his or her skin due to the infliction (al-
Zuhaili n.d.). In addition, Section 123(3)(h) of the same Act which provides that both males and female offenders must
wear thin clothes to cover their body rather than exposing it is in compliance with Sharia principles mandating the
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covering of Awrah (intimate body parts) even during the execution of whipping.It is also essential to ensure the infliction
could attain the objectives of whipping punishment which are deterrence and public education (al-Zuhaili n.d.).
In conclusion, the corporal punishment e.g., whipping, flogging, canning etc. is not certainly need to be abolished in total
by the states which still retain it as a form of criminal punishment especially Malaysia. It is undeniable that adopting the
Civil methods are harsh and contrary to the human rights principles which prohibits torture or cruel punishment towards
any person. However, it should be duly noted that the Sharia whipping procedures are more humane compared to Civil
whipping procedures as described and compared among each other before this.The earlier one is prescribed and carried out
by taking into consideration several matters such as physical and emotional impact of the offender alongside the need for
deterrence and public education compared to the latter one. Henceforth, the respective Malaysian authorities including, but
not limited to, federal government, parliament, and religious department are urged to revise the Civil whipping punishment
procedures as retained for a long time and propose the statutory amendments in order to standardize it in accordance with
Sharia whipping punishment procedures as prescribed under SCPA. Hopefully, the noble objectives of upholding criminal
justice in Malaysia could be improvised to protect the public interest and safety from any criminal activities.
ACKNOWLEDGEMENT
As the first author of this article, I would like to express millions of thanks to the second author-cum-supervisor, Dr.
Muhamad Helmi Md. Said (Faculty of Law, Universiti Kebangsaan Malaysia [FUU UKM]) for his cooperation,
assistance, and guidance for me in preparing this article. Without these, it would be a huge challenge for me to conduct the
research especially in terms of financial funding, finding references from numerous sources, and analysing them before
being put into writing of this article. I would also like to convey a token of appreciation to all members of the FUU UKM
for the knowledge and experience acquired during my four-years studies in obtaining the Bachelor of Laws with Honours
(LLB) from this prestigious world university.In addition, I wish the very best to all of my dearest UKM 33rd LLB
Classmates forfuture endeavours and undertakings and much thanks for their strong support and motivation.
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STATUTES AND LEGAL INSTRUMENTS
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Aceh Code No. 7 of 2013 on Criminal Procedure
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Regina v Sargeant (1974) 60 Cr App R 74.
996
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The Need for Revision of Whipping Punishment Procedures in Malaysia

Conference Paper · December 2021

Ahmad Amsyar Ahmad Effendy Muhamad Helmi Md Said

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13-14 DECEMBER 2021

MOHAMAD RIZAL BIN ABD RAHMAN

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