Whipping of convicts constitutional, Federal Court rules

Chief Justice Wan Ahmad Farid Wan Salleh says it is ultimately for Parliament to decide on the moral efficacy or social desirability of a specific punishment.

Chief Justice Wan Ahmad Farid Wan Salleh said the laws providing for whipping, including the Dangerous Drugs Act and the Penal Code, would remain in force unless Parliament decides otherwise.

“It is ultimately for Parliament to decide on the moral efficacy or social desirability of a specific punishment.

“The doctrine of separation of powers dictates that it is not for the courts to substitute their own subjective moral preferences for the deliberate policy choices of the legislative branch,” he said in the majority judgment dismissing a review application by three convicted prisoners.

Chief Judge of Sabah and Sarawak Azizah Nawawi concurred with Wan Farid, while Justice Lee Swee Seng dissented.

In their applications, the prisoners – J Sivachandran, Helmi Anuar Kasim, and A Kumanaan – sought to have their whipping sentences set aside, arguing that the punishment violates their constitutional rights under Articles 5 and 8 of the Federal Constitution.

Wan Farid said the mandatory whipping provisions represent a balanced and proportionate exercise of legislative power, as they serve the legitimate public interest of deterrence through a rational, fair, and strictly regulated sentencing framework.

“The challenge under Article 8 cannot be sustained because the applicants failed to prove that the exemption of women from whipping is based solely on gender discrimination,” he said.

Wan Farid also noted that there was no medical evidence before the court to show that the death of Zaidi Abdul Hamid at the Pokok Sena prison in 2024 was caused by whipping.

“In any event, the applicants failed to adduce any medical evidence that the sentence of whipping, if carried out on them, would pose a risk of death and thereby deprive them of their right to life,” he added.

In his dissenting judgment, Lee struck down the laws permitting whipping, describing the punishment as cruel and inhumane, and one that strips prisoners of their dignity.

“The constitutional rights of prisoners are not suspended or abrogated, except for their freedom of movement,” he said.

Lee added that Malaysia is bound by international norms, citing Article 5 of the Universal Declaration of Human Rights which states that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”.

He also referred to cases where prisoners subjected to whipping became wheelchair-bound or died due to septicaemia, adding that prisoners often do not receive adequate medical care and are held in unhygienic conditions.

Sivachandran was sentenced to death for murder, while Helmi and Kumanaan were sentenced to death for drug trafficking.

The Federal Court revised their sentences to 30 years’ imprisonment each in 2024. It also ordered that Helmi and Kumanaan receive 24 strokes of the rotan each for two trafficking offences, while Sivachandran was to receive 12 strokes.

The revisions were made under a transitional law enacted in 2023 following Parliament’s abolition of the mandatory death penalty.

The applicants relied on the case of Zaidi, who had been serving a 33-year prison sentence for murder but died from “septic sequelae to blunt force trauma to the gluteal region” after caning on Sept 25, 2024.

The trio filed a review under Rule 137 of the Federal Court Rules 1995.

Lawyers N Surendran and Rajesh Nagarajan appeared for the applicants, while deputy public prosecutors Afzainizam Abdul Aziz and Fuad Abdul Aziz represented the prosecution.

Counsel M Athimulan, appearing for the Malaysian Bar as amicus curiae (friend of the court), submitted that whipping is discriminatory as women are exempt from the punishment.