NOV 23 — Following amendments in 2022, Section 31(a) of the Syariah Criminal Offences (Takzir) (Terengganu) Enactment 2001 provides that a man who is convicted for the offence of khalwat for the second or subsequent offences shall be liable to whipping not exceeding six strokes or to imprisonment for a term not exceeding three years or to both and shall also be liable to a fine not exceeding RM5,000.
Khalwat is the offence of being together with one or more women, not being the man’s wife or mahram in any secluded place or in a house or room under circumstances which may give rise to suspicion that they were engaged in immoral acts.
The above punishments – imprisonment of not more than three years, fine of not more than RM5,000 and whipping of not more than six strokes – are within the sentencing jurisdiction of the State Syariah Court as prescribed by the federal law, namely the Syariah Courts (Criminal Jurisdiction) Act 1965 (Revised 1988) which is better known as Act 355.
Accordingly, the sentence of whipping of six strokes imposed on the carpenter after being convicted of repeated khalwat was a sentence according to law and, importantly, not ultra vires (beyond the legal authority of) Act 355.
How whipping shall be carried out
When an accused is sentenced to whipping, Sections 125 and 126 of the Syariah Criminal Procedure (Terengganu) Enactment 2001 apply.
The whipping rod, excluding its holder, shall be of the same type and make either from rattan or small branch or a tree without segment or joint and its length not more than 1.22 metres and its thickness not more than 1.25 centimetres.
Before execution of the sentence, the offender shall be examined by a Government Medical Officer to certify that the offender is in a fit state of health to undergo the sentence.
If the offender is pregnant, the execution shall be postponed until the end of two months after delivery or miscarriage, as the case may be.
The sentence shall be executed before a Government Medical Officer in such place as the Court may direct or in a place fixed by the Government for the purpose.
The person appointed to execute the sentence shall be an “adil” (just) and mature person.
The person shall use the whipping rod with average force without lifting his hand over his head so that the offender’s skin is not cut.
After inflicting a stroke, he shall lift the rod upward and not pull it.
Whipping may be inflicted on all parts of the body except the face, head, stomach, chest or private parts.
The offender shall wear clothes according to Hukum Syarak (Islamic law).
If the offender is a male the whipping shall be inflicted in a standing position, and if a female, in a sitting position.
If during the execution of the whipping the Government Medical Officer certifies that the offender can no longer receive the strokes, the whipping shall be postponed until the Medical Officer certifies that the offender is fit to undergo the balance of the sentence.
Accordingly, Senior Shariah High Court Judge Kamalruazmi Ismail was also within the law to order that the whipping be carried out at Masjid Al-Muktafi Billah Shah in Kuala Terengganu on December 6, after Friday prayers.
In short, the sentence imposed by the learned judge is a sentence according to law, like the sentence of death upheld by the Federal Court against former lawyer N. Pathmanabhan and a plantation worker, T. Thilaiyalagan for the murder of cosmetic billionaire Datuk Sosilawati Lawiya and three of her associates.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
