Ratification of UN anti-torture treaties won’t compromise shariah laws, says Hanipa

Ex-deputy minister Hanipa Maidin says criminal whipping is different from the shariah approach which focuses on religious discipline rather than bodily harm.

Hanipa was responding to the home ministry’s position that it would not be feasible to ratify the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) and the International Covenant on Civil and Political Rights (ICCPR), as it would require abolishing whipping as a punishment under criminal law.

“The home minister also noted that because shariah courts also mandate lashings, ratifying these treaties would necessitate amending state shariah enactments that currently provide for whipping.

“With due respect, the minister’s argument conveniently overlooks the fundamental differences between criminal and shariah whipping,” he said in a statement today.

Hanipa argued that while punishments under the Penal Code or Dangerous Drugs Act 1952 are designed to inflict severe physical pain, the shariah approach is “conceptually different, focusing on religious discipline rather than bodily harm”.

“While ratifying UNCAT and ICCPR would likely force changes to criminal law, I contend that existing shariah enactments could remain unchanged, as their specific form of whipping does not align with the treaties’ definitions of torture or cruel punishment,” he said.

In a split ruling yesterday, the Federal Court upheld the constitutionality of whipping for men under penal laws.

Chief Justice Wan Ahmad Farid Wan Salleh and Chief Judge of Sabah and Sarawak Azizah Nawawi said laws that provide for the punishment, including the Penal Code and the Dangerous Drugs Act, would remain in force unless Parliament decides otherwise.

Justice Lee Swee Seng dissented, holding that whipping was a cruel and inhumane punishment.

Hanipa commended Lee for approaching the matter through the lens of international law.

“Notably, the judge asserted that Malaysia is legally bound by these international norms, even when they haven’t been formally codified into domestic law.

“It is perfectly understandable for Lee to undergird his reasoning by citing Article 5 of the Universal Declaration of Human Rights (UDHR). After all, it is a milestone document in the history of human rights,” he said.

Hanipa pointed out that although Malaysia acknowledges the UDHR, the declaration does not carry the binding legal force of treaties such as UNCAT and ICCPR.

“International legal standards on torture are defined by these two key treaties. As of April 2026, Malaysia has yet to ratify either one,” he said.

Hanipa also pointed out that even if Malaysia ratifies UNCAT and ICCPR, such international obligations would still have to pass through a “domestic filter” to be enforceable.

“International law highly values the sovereignty of any state. Each state has the sovereign right to decide upon its social and economic structures, and to lay down laws that will influence the national character of the state and life within it,” he said.