ON Tuesday, two women aged 22 and 32 will be caned for having sex in Terengganu, the first record of such a case allegedly involving lesbian sex being punished under Islamic law in Malaysia.

They are also reported as the first women to be caned under shariah law in the east coast state.

News of their sentencing, which has made headlines overseas, has caused an outcry among civil society groups.

Amnesty International Malaysia said caning amounted to torture and urged the government to repeal laws that punished marginalised and sexual minority groups who face discrimination.

The Malaysian Human Rights Commission (Suhakam) denounced the Terengganu shariah court’s decision, calling the punishment “humiliating and demeaning” and an attempt to publicly embarrass the women and their families.

Shariah caning of women in Malaysia has rarely happened. The first time a woman was caned under Islamic law was in February 2010, when three women were found guilty of adultery.

Since then, two more cases of women being caned for zina, or illicit sex, were reported in Sabah in 2014 and in 2016.

With the spotlight on shariah caning again, The Malaysian Insight looks at what it involves.

What is shariah caning?

Under shariah law in Malaysia, the Islamic courts can mete caning as punishment on both men and women. This is different from the civil courts that only allow whipping for men.

Islamic law allows caning for takzir and hudud offences. Takzir refers to punishment administered at the judges’ discretion. They can be applied to offences for which no punishment is specified in the Quran, unlike hudud offences, for which punishments have prescribed limits.

The two women in Terengganu were arrested in April by Islamic enforcement officers after they were found having sex in a car in a public square. After admitting to the shariah offence earlier this month, they were each sentenced to six strokes of the cane and fined RM3,300.

The six lashes is the maximum allowable under the Shariah Courts (Criminal Jurisdiction) Act, noted Malaysia Syarie Lawyers Association president Musa Awang.

What offences can get Muslims caned?

Unlike criminal law in civil courts which is standardised nationwide, the application of shariah law differs from state to state.

Every state has its own set of shariah laws and punishments, which means some offences in some states allow caning as a penalty, while other states may not. However, the differences are not too vast.

Musa said the punishments differed from state to state because it was up to the sultan or Malay ruler – the protectors of Islam in the respective state – to decide on takzir punishments.

For example, having sex with another person of the same gender in Selangor is not punishable by caning. The penalty upon conviction is a fine up to RM2,000, jail for not more than a year, or both.

But same-sex relations in Kelantan (under sodomy) and the federal territories (musahaqah for gay or lesbian offences) can be punished by caning.

Other shariah offences like adultery, extramarital sex, sexual intercourse against the order of nature, and alcohol consumption are also punishable by caning.

The cane and method

The whipping rod, excluding its holder, is made either of rattan or a small tree branch with a segment or joint. The length of the rod is not more than 1.22m. Its thickness does not exceed 1.25cm.

Only offenders above 18 years of age are caned. The rod can only be inflicted on the body and never on the face, head, stomach, chest, or private parts.

The executioner uses moderate force to not break the offender’s skin. It is widely known that shariah caning is not as severe as judicial caning under civil criminal law.

“Shariah caning is very different. It is also not meant to humiliate the offender. A civil law offender who is whipped can become injured and even faint after being struck.

“Based on the size and thickness of the shariah cane and the manner of whipping, the lashes will be light and will not cause injury,” Musa said.

A male offender will stand during the whipping while a woman will be seated. The executioner must also be of the same gender as the offender, who is fully covered according to the shariah dress code during the punishment.

Pregnant women cannot be caned. The punishment will be postponed for pregnant women two months after delivery or miscarriage.

Is shariah caning public or private?

So far, only three cases reported in Sabah have been carried out publicly, and even then, within the confines of a courtroom.

The Borneo Post reported last year that one case was in 2014, where a woman in Tawau was punished for illicit sex.

The second and third cases were in 2016 involving a man and a woman who were found guilty of illicit sex.

This couple, however, had their punishment recorded and posted on YouTube, Borneo Post reported, because of requests by participants of a seminar who wanted to see how shariah caning was conducted. No information was provided on the seminar.

Kelantan, meanwhile, last year amended its Shariah Criminal Procedure Enactment 2002 to allow public caning at the court’s discretion.

Debate

Musa said shariah caning was much debated due to misunderstanding.

“Society does not understand and are frightened by some quarters that are trying to highlight the negative aspects when it involves shariah laws.

“It is also not mandatory for shariah canings to be done in public. It is up to the judge.

“If the judge feels there is no need, the caning will be done in private,” he said. – August 26, 2018.