Inthe 19th century, judicialcaning was imposed by the British in punishing crimes.1 Caningin Malaysia was governed by the CriminalProcedure Code that it stated the procedures in governing caning, and also whichis referred to as “whipping”. Sections 286 to 291 of the CriminalProcedure Code states the following procedures, place of whipping, time ofwhipping, mode of punishment, offenders forbidden from whipping, present ofmedical officer, and offence that could be remitted from whipping. In Malaysian criminal terminology, offences punishable by caning clearlystates in broader sense of offences, in to certain prisons and never be punishableexcept for juvenile offenders in some cases. The offences that will besentencing for caning are rape, violence or drug trafficking, illegalimmigration, bribery, and criminal breach of trust. Sections 403, 404, 406,407,408, 409, and 420 of the Criminal Procedure Code further illustrates the crimesthat will be punishable by whipping.
Malaysia has increased the number of penaloffences subjected to whipping not less than 60 in these years. Since 2002, tens of thousands ofrefugees and migrant workers were found to be caned in Malaysia when Parliamentmade immigration violations such as illegal entry subject to caning. InIndonesia, Amnesty International met migrant workers deported by boat fromMalaysia; 63 of the men had been caned.2 In November 2013, illegalmoneylending was added to the list of offences punishable by caning.
3 Also, offences like illegal bikeracing, snatch theft, traffic offences, deserting one’s wife, perpetratingget-rich-quick schemes, and vandalism are suggested be imposed under canningpunishment.4There areexemptions for the following groups ofpeople that shall not be caned, women, men above the age of 50, except thoseconvicted of rape, and men sentenced to death as stated under Section 289 ofCriminal Procedure Code. In selection of caning officers, it is strict in its applications thatonly 2 out of 30 applicants will be selected. The one who is selected willundergo special training for the job.
The availability to swing the cane with aspeed at least 160KPH and also to produce a strong impact at least 90kg. In2005, officers were paid RM10 for each stroke as compared to RM3 previously. According to Amnesty International, caningofficers in Malaysia prisons have the ability tear victims’ bodies with a metre-longcane. The speed and the power of the cane that swung by the caning officers couldrip into the victim’s naked skin that leaves scars to it and sometimesoffenders lost their consciousness during the punishment. Furthermore, there are two types of judicialcanes, the thicker canes are in the front row while the lighter canes are inthe back row.
Thicker canes are often used for serious crimes relating to causinggrievous hurt, rape, drug trafficking and armed robbery that these are usually.Thinner canes are used when crimes relating to bribery and criminal breach oftrust that these are usually while collar crimes.Thinner cane is used on white-collar criminals who committedoffences such as bribery and criminal breach of trust. Thicker cane is used on offenders who committed seriouscrimes such as drug trafficking, causing grievous hurt, armed robbery and rape.For adult offenders, the punishment of canning will be carriedout within seven days after the date of sentencing and not after it. If appealwas made, the punishment will be carried out after sentencing stated underSection 287 of Criminal Procedure Code.
The offender will be notified on thatday his sentence to be carried out and he was not entitled to be told inadvance.5 On thatday, the offender will be inspected by a medical officer to determine whetherhe fits to undergo the punishment. As if he was not in healthy state, theoffender then will be sent back to court. Determine whether the caning sentencecould be remitted or convert it to imprisonment up to 24 months. The offenderswho are in healthy state will be confined in a holding area. The caning isconducted in an open hall that surrounded by the walls of the prison withoutthe view of public and other prisoners. The offender will be escorted to thearea to undergo such punishment.
Prison director oversees the caning along withmedical officer and other prison officers. The prison director will confirmedthe number of strokes with the offender after reading the terms of punishment. Basicallyin practice, the offender is required to be whipped completely naked but inreality he will be provided a piece of loincloth that looks like garment or a “sarong”to cover his genitals. In precautions of HIV transmissions, sanitary proceduresare required by soaking the canes in antiseptic before the punishment toprevent any infections and to certain extent the cane will be burnt after thepunishment in cases of a HIV-positive subject. Sometimes, caning officers willbe provided protective smocks, goggles, and gloves to undergo the punishment. For juvenile offenders, according toCriminal Procedure Code, offenders below the age of 21 ordered by magistratesthat sentenced to caning will be held only with light rattan. The offender willbe ordered to be caned right on the spot in the courtroom up to 10 strokes. Thepunishment will be held immediately after the judgment administered by thepolice officer.
The offender’s will get whipped below their trousers with ametre-long light rattan. For female offenders, in the case of Kartika Sari Dewi Shukarno6,a Malaysian hospital worker working in Singapore. She was caught drinking beerin a hotel bar and convicted for caning. According Section 289 of Criminal ProcedureCode, women will be exempted for sentencing of caning but to this issue she wassentenced to caning.
However by the time of her sentencing, Sultan Pahangcommuted her sentence into imprisonment. This notable case was one of thecontroversial issue in sentencing of caning punishment. Section 289 of CriminalProcedure Code stated that elderly people above the age of 50 shall not becaned, unless the offender had done rape. 75 years of imprisonment and 50strokes of whipping were charged to a stepdad that had raped his step-daughterwho is 15 years old in year between 2001 and 2003.7