Caning in Malaysia

Judicial caning, the most severe of the four forms of corporal punishment in Malaysia, can be ordered as part of a criminal sentence imposed by civil courts on male convicts. Always ordered in addition to a prison sentence for adult offenders, it is inflicted with a long and thick rattan cane on the prisoner's bare buttocks in an enclosed area in the prison. Convicts who were not sentenced to caning earlier in a court of law may also be punished by caning in the same way if they commit aggravated offences while serving time in prison.

In schools, students may be caned with a light rattan cane on the buttocks over clothing or the palm of the hand for serious misconduct. Although legally only boys can be caned, the caning of girls is common in Malaysia. In the domestic setting, it is legally and culturally acceptable for parents to punish their children with a light rattan cane for misbehaviour. Sharia courts can sentence Muslim men and women (including Muslim foreigners) to caning for committing certain offences. This form of caning is much less severe compared to judicial caning and it is designed to humiliate the offender rather than to inflict physical pain.

Malaysia has been criticised by human rights groups for its use of judicial caning, which Amnesty International claims "subjects thousands of people each year to systematic torture and ill-treatment, leaving them with permanent physical and psychological scars".

Judicial caning

History

Caning, as a form of legally sanctioned corporal punishment for convicted criminals, was first introduced 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 (with the cat o' nine tails) 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. In 1953, the Criminal Justice Act 1953 was passed to abolish the use of cat o' nine tails in Malaya, and mandated that the sentence of whipping can only be carried out by rattan.

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:

• The offender cannot be sentenced to more than 24 strokes of the cane in a single trial. In the case of a juvenile offender, the number of strokes is capped at 10.
• The rattan cane used shall not be more than 0.5 inches (1.27 cm) in diameter.
• In the case of a juvenile offender or a person sentenced to caning for committing relatively less serious offences (e.g. white-collar offences), the caning is inflicted in the way of school discipline using a light rattan cane.
• Caning is not to be carried out by instalments. If an offender is sentenced to caning in two or more separate trials, the total number of strokes may be inflicted in a single session if it does not exceed 24.
• A medical officer is required to be present and to certify that the offender is in a fit state of health to undergo the punishment.

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

Exemptions

The following groups of people shall not be caned:

• Women
• Men above the age of 50, except those convicted of rape
• Men sentenced to death

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. 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.

Statistics

Although the Malaysian government does not release overall figures of the number of offenders sentenced to caning every year, in 2010 Amnesty International used statistical sampling to estimate that as many as 10,000 prisoners were caned in a year.

In 2004, the Malaysian Deputy Home Affairs Minister stated that 18,607 undocumented migrants were caned in the first 16 months since caning for immigration offences started in August 2002. In 2009, the Malaysian parliament revealed 34,923 foreigners were caned between 2002 and 2008. Over 60 percent of them were Indonesians, 14 percent were Burmese, and 14 percent were Filipinos.

Caning officers

The criteria for the selection of caning officers are very stringent, with maybe only two out of every 30 applicants being chosen. Those selected undergo special training. They are trained to swing the cane at a speed of at least 160 km/h (99 mph) and produce a force upon impact of at least 90 kg (198 lb). In 2005, they were paid 10 ringgit (about US$2.60 or 2.10€) for each stroke as compared to three ringgit previously.

The cane

Two types of rattan canes are used for judicial caning:

• Thinner cane, used on white-collar criminals who committed offences such as bribery and criminal breach of trust.
• Thicker cane, used on offenders who committed serious and violent crimes, such as drug trafficking, causing grievous hurt, armed robbery and rape.

The thicker cane is about 1.09 m (3.6 ft) long and 1.25 cm (0.49 in) thick.

Administration procedure

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 punishment cannot be carried out within 24 hours of the sentence being passed except by special order in case of emergency.

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 or, in some instances, one day before. The uncertainty often puts offenders through much fear and psychological suffering.

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.

While the prison staff present at the caning scene are usually all men, sometimes female doctors from government hospitals might be ordered to participate because it was part of their duties as government employees.

In practice, the offender is required to strip completely naked for the punishment. However, he may be given a loincloth 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 adjacent picture). 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 an 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 18) 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 such cases in her five years of legal practice. However, another lawyer said 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."

As the caning officers are trained to strike the target and drag the tip of the cane across the wound, the laceration will cause the skin to come off immediately and thus draw blood. Due to the physical pain and intense fear, the offender may lose control over his urinary and bowel functions, or even lose consciousness altogether. Offenders have variously described the pain as "intense", "burning", "being bitten by red ants", "like an electric shock", "worst pain in my life", etc. In any case, judicial caning usually 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 August 1991, Malaysia's TV3 broadcast a two-part documentary on prison life shot by Majalah Tiga at Kajang Prison and Pudu Prison with permission from the Malaysian Prison Department. The second part focused on corporal and capital punishment. Wan Zaleha Radzi, the documentary's anchorperson, said that her team filmed an actual caning scene. However, direct camera shots of the cane striking prisoners' bare buttocks were edited out from the telecast because they were deemed too sensitive for viewers.

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.