JUSTICE SYSTEM IN MALAYSIA: CANING, HANGING AND ENGLISH COMMON LAW

JUSTICE SYSTEM IN MALAYSIA

Malaysia is a deeply conservative country and this is reflected in the justice system. There are Western-style laws that apply to criminal cases and sharia (Muslim law) courts.Sharia is imposed only on Muslims and deals with moral and family matters. Non-Muslims are required to follow secular laws that deal with the same matters.

Malaysia has an independent judiciary and two court systems (civil courts and Islamic domestic law courts).The dual-track legal system is comprised of civil courts running in parallel with Islamic Sharia courts where Muslim Malays can be tried on religious and moral charges. Police constables and courts settle disputes, various offices if the civil government often adjudicate problems as do religious leaders at mosques.

The legal system is a mix of English common law, Islamic law, and customary law. The federal constitution of Malaysia is the supreme law of the land, and the legal system is based on English common law. Judicial review of legislative acts is carried out in the Supreme Court at request of supreme head of the federation. Malaysia has not submitted an International Court of Justice (ICJ) jurisdiction declaration. It is a non-party state to the International Criminal Court.

Judicial branch in Malaysia: 1) civil courts include Federal Court, Court of Appeal, High Court of Malaya on peninsula Malaysia, and High Court of Sabah and Sarawak in states of Borneo (judges are appointed by the king on the advice of the prime minister). 2) Sharia courts include Sharia Appeal Court, Sharia High Court, and Sharia Subordinate Courts at state-level and deal with religious and family matters such as custody, divorce, and inheritance only for Muslims; decisions of sharia courts cannot be appealed to civil courts.

See Separate Article on ISLAMIC LAW IN MALAYSIA

Courts in Malaysia

Judicial power in Malaysia is vested in the Superior Courts (comprising the Federal Court, the Special Court, the Court of Appeal, the High Court of Malaya and the High Court of Sabah and Sarawak); and Subordinate Courts (comprising the Sessions Court, the Magistrates’ Court, the Syariah Court, the Juvenile Court, the Penghulu Court and Native Court) as provided for by the Federal Law. The Head of the Judiciary is the Chief Justice of the Federal Court of Malaysia. The Federal Court has the jurisdiction to determine the validity of any law made by Parliament or by a State legislature. [Source: Malaysian Government]

The sharia system, which issues rulings under Islamic law, is composed of a high court and courts in each state. A system of superior and subordinate courts handles civil and criminal law. Superior courts include the Federal Court, the Court of Appeals, and two High Courts.

The Federal Court is the highest judicial authority and final court of appeal. It has original, referral, and advisory jurisdiction as well as jurisdiction over disputes involving states and the federal government. The Federal Court has a chief justice and 10 judges; the number of judges needed for rulings varies according to the type of case.

The Court of Appeals acts as an appeals court between the Federal Court and the High Courts. The High Courts—one each for eastern and western Malaysia—have original, appellate, and revisionary jurisdiction. A Special Court hears civil and criminal cases involving state rulers and the supreme ruler. The attorney general, as the principal legal officer and public prosecutor, provides legal advice to the executive branch and may draft bills for deliberation and enactment by parliament.

Subordinate courts include 60 sessions courts, 151 magistrate courts, and the Court for Children, which hears juvenile cases. Subordinate courts have jurisdiction over criminal cases not subject to the death penalty. Sessions courts can hear civil cases valued up to US$65,693, and magistrate courts have jurisdiction over civil cases valued up to US$6,596. Native courts in Sabah and Sarawak and penghulu (village headman) courts in the peninsula handle misdemeanors and civil disputes according to traditional customs, but under state jurisdiction.

The judiciary is a newly established and evolving institution. Until 1985 the highest court of appeal was the Privy Court, located in the United Kingdom. Malaysia has a death penalty and no trial by jury. Critics and jurists contend that the system is beset by many problems, such as case backlogs, corruption, poor legal representation, and a changing institutional structure. In the 1980s, Mahathir placed the independent judiciary under parliamentary control by removing the president of the supreme court and other senior judges.

Problems with the Malaysian Justice System

The Anwar trial raised some serious questions about the credibility of Malaysia’s justice system. Judges for example do not seem to act independently. They often make decisions that appear in accordance with the wishes of the government or the ruling party.

One judge said that he had been given a “directive” over the phone by a politician to dismiss a case that involved getting a high-profile member of Mahathir ruling coalition elected with non-existent voters. Another judge got into trouble when a photograph was published on the Internet that showed him arm and arm with a lawyer for a top tycoon while the two vacationed together in New Zealand.

People with connections to judges sometime get their cases heard quicker than other people. The prosecution is allowed to amend its charges at any point during the trial. See Anwar Trial

As time has gone by judges have become more independent and blown the whistle on rigged elections and detention of government critics, released opposition members held under Malaysia’s draconian security law and criticized the judge who handled the Anwar case.

See Human Rights.

Death Penalty in Malaysia

Malaysia has a death penalty. In most cases those who are sentenced to death are hanged. Malaysia is particularly notorious for imposing death sentences on people caught trafficking drugs. People convicted of murder are also often sentenced to death.

Since 1960 more than 440 people have been executed in Malaysia. As of early 2011, year, Malaysia had nearly 700 prisoners, mostly men, on death row. More than two-thirds of them were involved drug offences. The last execution in Malaysia was carried out in 2010.[Source: AFP]

See Separate Article SMOKING, ILLEGAL DRUGS AND HARSH ANTI-DRUG LAWS IN MALAYSIA

Ten Year Jail Sentence Changed to Death Penalty

In April 2009, The Star reported: “They were looking forward to their release next year after serving time for their roles in the murder of Australian engineer Hans Herzog in 2003. However, their hopes turned into a nightmare. The Appeals Court yesterday substituted the 10-year sentence on Low Kian Boon, 24, with the death penalty after finding him guilty of murder. His male accomplice, 23, (whose name cannot be disclosed as he was a juvenile at the time of trial) was ordered to be further detained in prison at the pleasure of the Sultan of Selangor. [Source: The Star, April 9, 2009]

Court of Appeal judge Datuk Gopal Sri Ram, who sat with Justices Datuk Hasan Lah and Datuk Jeffrey Tan Kok Wha, arrived at the decisions after allowing the prosecution’s appeal against the High Court’s decision in convicting Low and his accomplice of culpable homicide not amounting to murder in Herzog’s killing.

The duo, aged 18 and 17 at that time, were charged with committing the offence at a house in Jalan USJ 1/4E, in USJ, Selangor, between 12.20am and 12.45am on Nov 12, 2003. Herzog’s stepdaughters (aged 16 and 14 at the time of the incident) were also charged in connection with the offence but were acquitted and discharged by the Shah Alam High Court on Feb 6, 2006, without their defence being called.

On April 25, 2006, Judge Datuk K.N. Segara ordered Low to be jailed 10 years from the date of his arrest on Nov 15, 2003, and the accomplice also 10 years from his date of arrest on Nov 12, 2003. In April 2009 Justice Sri Ram told Low: “The court finds you guilty of the offence of murder and you will be taken to a place of execution where you will be hanged by your neck until you are dead. May God have mercy on your soul.” As for the accomplice, a child within the Child Act 2001 at the time of the offence, the judge said under Section 97 of the Act, no sentence of death may be passed upon him. “As such, under Section 97(2) of the same Act, we direct (the accomplice) be detained at a place of lawful imprisonment at the pleasure of the Sultan of Selangor,” he ordered.

He said the court found it was Low or the accomplice who must have inflicted the fatal injury on the deceased. “The attack on the deceased was pre-planned. This is supported by the purchase of two parangs and the manner they entered the deceased’s house. “It is equally supported by the fact that one of the accused pursued the deceased down the staircase of his home. “Taking into consideration premeditation, the nature of the weapons, the nature of the injuries inflicted, it indicates a savage attack. “There were 23 slash wounds on (Herzog’s) body including one each at the neck and face. “The irresistible conclusion which a reasonable tribunal properly directed itself on the totality of the evidence is that the accused intended to kill the deceased.”

Caning in Malaysia

Caning—being flogged with a moistened rattan cane— is a punishment in Malaysia. It is used as a supplementary punishment to imprisonment for about 60 crimes, including embezzlement, robbery, rape, and kidnaping. In most cases the punishment is carried out in private. In the early 2000s, incest and rape were made crimes punishable by public flogging.

In December 2010, London-based human rights watchdog Amnesty International urged Malaysia to end a caning "epidemic", saying that highly publicized case involving women was "just the tip of the iceberg". Donna Guest, the group's deputy Asia-Pacific director, said in a statement that Malaysian authorities caned more than 35,000 mostly foreigners since 2002. "The government needs to abolish this cruel and degrading punishment, no matter what the offense," she said. [Source: Al-Jazeera, February 18 2010]

In a report called “A Blow to Humanity,” Amnesty International said: “The Malaysian government must immediately end the practice of judicial caning, which subjects thousands of people each year to systematic torture and ill-treatment, leaving them with permanent physical and psychological scars, Amnesty International said today in a new report. Victims, including many foreigners seeking asylum, have little recourse, support or hope. Many have no understanding of the charges or fate that awaits them. “Caning in Malaysia has hit epidemic proportions,” said Sam Zarifi, Amnesty International’s Asia-Pacific Director. “In every case that we examined, the punishment amounted to torture, which is absolutely prohibited under any circumstances.”[Source: Amnesty International, December 6, 2010 +++]

“In recent years, Malaysia has increased the number of penal offenses subject to caning to more than 60. Since 2002, when Parliament made immigration violations such as illegal entry subject to caning, tens of thousands of refugees and migrant workers have been caned. Refugees who fled torture and forced labour in Myanmar told Amnesty International how Malaysia (which does not recognize refugees) caned them for immigration violations, sometimes repeatedly. In Indonesia, Amnesty International met migrant workers deported by boat from Malaysia; 63 of the men had been caned. +++

“Judicial caning was originally imposed under British colonial rule in the 19th century. Under international law, all judicial corporal punishment constitutes torture or other ill-treatment, which is prohibited in all circumstances. Malaysian officials and state employees who are complicit in torture are liable to prosecution worldwide under universal jurisdiction for grave human rights crimes such as these, Amnesty International said. +++

“Neighbouring countries significantly contribute to Malaysia’s economy by sending tens of thousands of migrant workers,” said Sam Zarifi. “Indonesia and other migrant-sending countries should insist that Malaysia stop caning their citizens.” Amnesty International called on the Malaysian government to: 1) Enact immediately a moratorium on caning punishment in all cases, with a view to its abolition; 2) Ratify the UN Convention Against Torture and its Optional Protocol, as well as the International Covenant on Civil and Political Rights; 3) Amend legislation to treat immigration violations as administrative offences rather than crimes punishable by prison or corporal punishment. +++

Drawing on testimony from 57 former prisoners, the report describes how victims are given little warning of the timing of their punishment and forced to line up to watch others being caned. "They only notified me one day before," said Abdul Wahab, a Malaysian who received a single stroke. "I would have been less scared if I had known before. I could have prepared myself. If you don't know, you just wait and wait." Details of Caning in Malaysia

Caning victims are tied down to a wooden trestle and flogged on their bare buttocks with a half-inch-thick rattan cane wielded by an official trained in the martial arts. The canes are moistened so they don't fray. The reason it so painful is that the first few blows open the skin and subsequent blows are wielded on the open wounds. Caning is so painful that victims usually go into shock before the caning is finished and are left with permanent scars. They often have to sleep on their stomach for weeks and have difficulty walking.

According to Amnesty International: “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. The Malaysian government does not punish officers for their actions. Instead, it trains officers how to conduct caning and pays them a bonus for each stroke. Many double their income through their caning work. Others take bribes to intentionally miss, sparing their victims. +++

“State-employed doctors also play an integral role in caning. They examine victims and certify their fitness to be caned. When victims lose consciousness during caning, they revive them so the punishment can continue. After caning, some victims suffer long-term physical disabilities. “The role that Malaysian doctors play in facilitating deliberate pain and injury through caning is absolutely contrary to international medical ethics,” said Sam Zarifi. “Instead of treating the victims, doctors are assisting in their torture and ill-treatment.” +++

Caning is carried out differently on men and women. Male drug offenders, kidnappers and others have been caned with a thick rattan stick on bare buttocks, breaking the skin and leaving lifelong scars. The handful of women that have been caned have been struck under Islamic laws with a thin cane on the back with their clothes on.

Caning of Women in Malaysia

In February 2010, three women were caned in Malaysia under Islamic law for committing adultery, the first such case in the country. Two of the women were whipped six times while the third received four strokes of the rotan (cane). Al-Jazeera reported: “Hishamuddin Tun Hussein, the Malaysian home affairs minister, said the sentences were carried out 9 after a sharia court found them guilty of extra-marital sex. "It was carried out perfectly," Hishamuddin said in a statement. "Even though the caning did not injure them [the women], they said it caused pain within them." He said one woman was released after the caning, another was freed a few days later while the third set free four months later. [Source: Al-Jazeera, February 18 2010 \\\\]

“The women, and four men, were caned following a decision in the religious courts, Hishamuddin said. His comments came as authorities were preparing to cane another Muslim woman, Kartika Sari Dewi Shukarno, who was arrested in 2009 for drinking beer and sentenced to six strokes of the cane. The case, when first reported, raised concerns that the nation's secular status is under threat, eroding the rights of some 40-45 percent of the country's ethnic minorities. ////

“Hishammuddin said Kartika's case had flagged concerns about how women should be flogged and that the recent canings demonstrated that the prisons department can carry out punishments in accordance with Islamic law. Under the sharia, the women have to be whipped in a seated position by a female prison guard and be fully clothed. "I hope this will not be misunderstood so much that it defiles the purity of Islam," Hishammuddin said, according to state media. "The punishment is to teach and give a chance to those who have fallen off the path to return and build a better life in future." ////

“The caning, however, has raised new questions about whether a state religious court can sentence women to be caned when federal law precludes women from such a punishment, while men below 50 can be punished by caning. The case is expected to fuel a debate over rising "Islamisation" in Malaysia, where religious courts have been clamping down on moral offences, as well as a ban on Muslims consuming alcohol that had been rarely enforced. ////

“News of the women's caning sparked public outrage, with lawyers and rights groups blaming the government for allowing it. Ragunath Kesavan, president of the Malaysian Bar, said it was worrying that the punishment had gone ahead even as the caning issue was being hotly debated by Muslim scholars, religious groups and human rights activists. "The impression was that Kartika's case would be the first so I've got no idea what has happened," he said. "It's not as if this is the Middle East... it's not a good signal that they're [the government] sending out." "We are against any form of corporal punishment, for men or women," Kesavan said. "The fact is that any form of whipping is barbaric." Sisters in Islam, a local group of Muslim women activists, said the caning "constitutes further discrimination against Muslim women in Malaysia". ////

Prisons in Malaysia

Prisoners are often forced to sleep on concrete floors of their cells. Prison sentences are customarily reduced by a third for good behavior. Sometimes prisoners are pardoned by the king. According to AFP in 2009: “The current capacity of prisons nationwide is only 32,200. The government recently approved the building of 16 new prisons with a combined holding capacity of 18,000, the Star newspaper reported. Malaysia has already introduced an early-release programme for prisoners who demonstrate good conduct as part of its plan to cut costs and overcrowding in prisons. It has also introduced alternative non-prison sentences and community service orders for minor offences.

Describing a prisoner kept in soundproof cell, Peter Gwin wrote in National Geographic, “The closest the guards let me get to him is the other side of a scratched, bulletproof window looking onto an interview cell. Ariffin sits silently, the telephone pressed to his ear, his eyes shifting between the interpreter and me, his shirt damp with sweat. “The lawyer took all my money,” he says finally. “I have no soap. I haven’t brushed my teeth since I got here.” I offer to leave some toiletries for him with the guards. His demeanor brightens. After a while “a guard signals that our time is up. I hurriedly tell Ariffin about my plans to visit Batam. The guard puts his hand on Ariffin’s shoulder. The prisoner squeezes the phone. For the first time, I notice his muscular forearms. He speaks quickly before the guard leads him away. He said, “Don’t forget about the toothbrush.” [Source: Peter Gwin, National Geographic, October 2007]

Parole—the early release of a prisoner who is then subject to continued monitoring as well as compliance with certain terms and conditions for a specified period—was not introduced in Malaysia until 2008. Prisons director Datuk Wira Zulkifli Omar told Th Star it works and has helped ease congestions in prisons nationwide and given prisoners a second chance at life. For instance, in Johor, of 578 convicts given parole over the past four years until Thursday, only 1.9 percent (less than a dozen of them) had broken the conditions and sent back to prison. “This is a very good statistic which shows that the parole system is working in the country,” he said when launching the department's Message from the Prison programme at the Simpang Renggam Prison here. [Source: the Star June 30, 2012]

Zulkifli said recently 169 convicts undergoing rehabilitation programme for parole were sent for community service at places such as mosques, old folks homes and orphanage. They recorded a good attendance, he added. Zulkifli said 22 convicts stayed at the department's half-way house in Johor Baru, introduced last year, which gave them an opportunity to find employment and to get back on their feet. He said the department also housed 564 convicts at Kem Mahkota, Kluang, for a community rehabilitation programme. [Ibid]

Malaysia Deports Foreign Prisoners

In June 2009, Malaysia announced plans to deport foreign prisoners and allow them to serve out the rest of their sentences in their home countries to cut costs and overcrowding in local jails. AFP reported: “Proposed legal amendments will allow a prisoner-transfer agreement withother countries to ease congestion in Malaysia's 30 prisons, Home Minister Hishammuddin Hussein said. "As of May, 41 percent or 15,279 of the 37,242 inmates serving time in our jails are foreigners," the minister told the New Straits Times newspaper. "Not only are the prisons congested but there is also the high cost of management that would be a burden to the country if this continues," he added. [Source: AFP, June 9, 2009]

The agreement would also allow Malaysians jailed overseas to return to prisons back home to serve the remainder of their sentences. The report did not say how many Malaysians were believed to be held in prisons abroad. No nationality breakdown was given for the foreign prisoner population in Malaysia, one of Asia's largest importers of labour with an estimated 2.2 million guests workers largely employed in the plantation, manufacturing, construction and service sectors.

Image Sources:

Text Sources: New York Times, Washington Post, Los Angeles Times, Times of London, Lonely Planet Guides, Library of Congress, Malaysia Tourism Promotion Board, Compton’s Encyclopedia, The Guardian, National Geographic, Smithsonian magazine, The New Yorker, Time, Newsweek, Reuters, AP, AFP, Wall Street Journal, The Atlantic Monthly, The Economist, Foreign Policy, Wikipedia, BBC, CNN, and various books, websites and other publications.

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© 2008 Jeffrey Hays

Last updated June 2015

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