Caning in Malaysia

History

Caning, as a form of legally sanctioned corporal punishment for convicted criminals, was first introduced to Malaya (present-day peninsular Malaysia and Singapore) by the British Empire in the 19th century. It was formally codified under the Straits Settlements Penal Code Ordinance IV in 1871.

In that era, offences punishable by caning were similar to those punishable by birching or flogging in England and Wales. They included robbery, aggravated forms of theft, burglary, assault with the intention of sexual abuse, a second or subsequent conviction of rape, a second or subsequent offence relating to prostitution, and living on or trading in prostitution.

The practice of judicial caning was retained as a form of legal penalty after the Federation of Malaya declared independence from Britain in 1957. It is largely a legacy of British colonial rule and has nothing to do with "Islamic justice" even though the majority of the Malaysian population are Muslims.

Legal basis

Sections 286–291 of the Criminal Procedure Code lay down the procedures governing caning, which is referred to as "whipping" in the Code in accordance with traditional British legislative terminology. The procedures include the following:

Boys aged between 10 and 18 may be sentenced to a maximum of ten strokes with a light cane.

The following groups of people shall not be caned:

Offences punishable by caning

Malaysian criminal law prescribes caning for a wide range of offences, always in addition to a prison term and never as a punishment by itself (except for juvenile offenders in some cases). Caning is usually a routine punishment for serious offences, notably those involving rape, violence or drug trafficking, but also for lesser offences such as illegal immigration, bribery, and criminal breach of trust. Every year, thousands of illegal immigrants (mostly from Indonesia) are briefly incarcerated, punished with one or two strokes of the cane, and then deported. Unlike in Singapore, foreigners who overstay their visa in Malaysia are not sentenced to caning. In November 2003, illegal moneylending was added to the list of offences punishable by caning.

Malaysians have called for caning to be imposed as a punishment for illegal bike racing, snatch theft, traffic offences, deserting one's wife, perpetrating get-rich-quick schemes, and vandalism (cf. Singapore's Vandalism Act). However, these offences still remain outside the list of offences punishable by caning.

Caning officers

The criteria for the selection of caning officers is very stringent, with maybe only two out of every 30 applicants being chosen. The selected ones undergo special training for the job. They are trained to swing the cane at a speed of at least 160 kph and produce a force upon impact of at least 90 kg. In 2005, they were paid 10 ringgit for each stroke as compared to three ringgit previously.

The cane

Two types of rattan canes are used for judicial caning:

The thicker cane is about 1.09 m long and 1.25 cm (0.492 inches) thick.

For adult offenders

The punishment cannot be carried out until after seven days from the date when the offender was sentenced to caning. If the offender made an appeal to an appellate court, the sentence must be confirmed by the court before it can be carried out.

The offender is not told in advance when he will be caned; he is notified only on the day his sentence is to be carried out. On the day, a medical officer inspects him and determines whether he is in a fit state of health to undergo the punishment. If the medical officer certifies that the offender is not in a fit state of health to be caned, the offender will be sent back to the court for the caning sentence to be remitted or converted to a prison term of up to 24 months, in addition to the original prison term he was sentenced to.

If the medical officer certifies the offender fit, the offender is then confined in a holding area with other prisoners who are going to be caned on the same day. The offender is escorted to the caning area when it is his turn to be punished. The caning is conducted in an open yard surrounded by walls in the prison, out of the view of the public and other prisoners. The prison director oversees the caning, along with the medical officer and other prison officers. He reads the terms of punishment to the offender and asks him to confirm the number of strokes.

In practice, the offender is required to strip completely naked for the punishment. However, he may be given a piece of loincloth-like garment or a sarong to cover his genitals. After he confirms the number of strokes, he is taken to an A-shaped wooden frame, to which he is secured throughout the duration of the punishment. The front of his body rests against a padded cushion on the frame while his arms are tied above his head and his legs spread apart and secured tightly to the frame (see the mannequin in the picture on the right). A "torso shield" is fastened around his body, exposing only his buttocks while protecting his lower back (the kidneys and lower spine area) and upper thighs (near the genitals) from any strokes that might land off-target. A prison officer stands in front of the offender and wraps his hands around the offender's head in case he jerks back his head and injures his neck. The caning is administered on the offender's bare buttocks. The caning officer stands beside the frame and delivers the number of strokes specified in the sentence at intervals of about 30 seconds. To ensure maximum effect, he ensures the tip of the cane comes in contact with the target area and drags it quickly along the skin to break it.

Sanitary procedures are observed as a precaution against HIV transmissions. Each cane is soaked in antiseptic before use to prevent infection. In the case of a HIV-positive subject, the cane used is burnt after the punishment is over. Caning officers also sometimes wear protective smocks, gloves and goggles.

For juvenile offenders

The Criminal Procedure Code stipulates that juvenile offenders (below the age of 21) sentenced to caning shall receive the punishment "in the way of school discipline using a light rattan cane." The legal limit for juveniles is 10 strokes. According to press reports from between 2012 and 2014, the punishment is administered by a police officer inside the courtroom in full view of everyone present there, immediately after the judge announced the sentence. The offender keeps his clothes on and receives the punishment on the buttocks over clothing while bending over a table. A medical officer is also present to supervise the punishment and ensure safety.

A lawyer who represented a juvenile offender who was sentenced to public caning in court defended the punishment by saying that it was part of a plea bargain with the prosecution to ensure that the offender would be punished "in the way of school discipline" instead of the manner in which adult offenders are caned in prison. She also added that such punishments are common in Malaysia and that she had witnessed six of such cases in her five years of legal practice. However, another lawyer pointed out there were errors in the way the sentence was ordered and carried out.

Medical treatment and the effects

A 2010 report by Amnesty International described the severity of judicial caning as follows, "In Malaysian prisons specially trained caning officers tear into victims' bodies with a metre-long cane swung with both hands at high speed. The cane rips into the victim's naked skin, pulps the fatty tissue below, and leaves scars that extend to muscle fibre. The pain is so severe that victims often lose consciousness." In any case, judicial caning usually causes bleeding and leaves permanent scars on the offender's buttocks.

After the caning, the offender is released from the frame and taken to the prison clinic for medical treatment.

Malaysian caning videos

In the mid 2000s, the Malaysian government released three graphic videos featuring several genuine judicial canings, ranging from one stroke to 20 strokes. The canings were filmed in Seremban Prison near the national capital, Kuala Lumpur.

Comparison of judicial caning in Brunei, Malaysia and Singapore

Judicial caning is also used as a form of legal punishment for criminal offences in two of Malaysia's neighbouring countries, Brunei and Singapore. There are some differences across the three countries.

Prison caning

Under Malaysian law, the officer in charge of a prison (holding the rank of Assistant Commissioner of Prison and above) may impose caning on prisoners who commit aggravated prison offences even if they were not sentenced to caning earlier in a court of law. The prisoner is given an opportunity to hear the charge and evidence against him and make his defence.

Sharia caning

Malaysia also has a separate system of Sharia courts, which can order caning for Muslim men and women. This kind of caning is rarely implemented, and is quite different from, and much less severe than, judicial caning under Malaysian criminal law. It is intended to be shaming rather than particularly painful. The punishment is carried out in an enclosed area, away from the view of the public. The cane used is smaller as compared to the one used for judicial caning. The offender is fully dressed and receives the punishment on his or her back; men remain standing when they receive the punishment while women are seated. The caning is administered by an officer of the same sex as the recipient. Each stroke is executed with moderate force so as not to break the skin, and the caning officer delivers the punishment with a "limp wrist" and without raising his/her hand. A medical officer is also present throughout the procedure to ensure safety.

Notable cases

School caning

Corporal punishment is lawful in schools for boys only, and is regulated by the Education Regulations (Student Discipline) 2006.

However, there are many reported cases suggesting the caning of schoolgirls, on their palms, is a common practice especially in primary schools. While serious infringements such as theft, smoking, gangsterism and bullying are among offences punishable by caning, minor transgressions such as incomplete homework have also been dealt with by physical punishment.

Public caning is banned in schools after the Education Regulations (Student Discipline) 2006 came into force. The Malaysian government does not encourage caning for primary school students, but caning is allowed in secondary schools, and may only be administered by the principal or a person to whom he delegates the power.

Criticism

Malaysia has been criticised by human rights groups for its use of judicial caning. A 2010 report by Amnesty International criticises the increasing use of judicial caning in Malaysia and claims the punishment "subjects thousands of people each year to systematic torture and ill-treatment, leaving them with permanent physical and psychological scars". Amnesty International estimates that some 10,000 people are caned each year, many of them for immigration offences. The charity argues the practice could cause long-term disabilities and trauma and said many of the foreigners sentenced to caning did not get legal representation or understand the charge.

Malaysian officials reject the accusation of torture. The Prison Department states that canings are carefully supervised by prison authorities and attended by medical doctors.