Although legally enforceable, groups cite international human rights norms to push for abolition of practice
PETALING JAYA: Judicial caning in Malaysia remains constitutionally valid and legally enforceable but its place in a modern criminal justice system is increasingly under scrutiny amid evolving human rights expectations and a stronger push towards rehabilitation.
A lawyer interviewed by theSun said the punishment, provided under statutes such as the Dangerous Drugs Act 1952 and the Penal Code, is administered within a tightly regulated legal framework with strict safeguards.
She pointed to provisions under the Criminal Procedure Code, which set clear limits on the number of strokes, mandatory medical supervision and exemption of certain categories of offenders.
Under Section 288, whipping is capped at 24 strokes for adults and 10 for youth offenders, using a regulated cane under prescribed specifications.
Section 289 prohibits caning for women, men above 50 years old and individuals sentenced to death, except in certain serious sexual offences.
Section 290 further requires a medical officer to certify fitness of the individual before and during execution of the caning, with the process halted if the offender is deemed unable to withstand the punishment.
She said caning also serves as an alternative sentencing option, particularly following the abolition of the mandatory death penalty.
Provisions under Sections 39A(1) and 39A(2) of the Dangerous Drugs Act and Section 392 of the Penal Code still prescribe whipping for offences such as drug trafficking and robbery.
“The Federal Court decision upholding caning is well within the framework of the Federal Constitution and Malaysian law.”
On international standards, she said instruments such as the United Nations Convention Against Torture are not directly binding unless incorporated into domestic law.
She also said Malaysia retains the discretion to shape its criminal justice policies based on local conditions and legislative priorities.
However, she acknowledged that questions over effectiveness of the practice remain.
“While caning may act as a deterrent for serious crimes, modern criminal justice systems increasingly prioritise rehabilitation and reintegration,” she said, adding that comparative approaches reflect differing global stances.
“In Singapore, judicial caning remains part of the legal system for offences that include drug and immigration-related crimes, although it is not applied universally.”
In contrast, the United Kingdom has abolished corporal punishment altogether, aligning itself with international human rights norms and an emphasis on dignity and proportionality.
“These comparisons show Malaysia is not unusual in the region, but differs from jurisdictions that have moved away from corporal punishment.”
She said the issue goes beyond legality, with broader policy considerations balancing deterrence, rehabilitation and human rights.
Meanwhile, the Malaysian Bar has maintained its position that corporal punishment undermines human dignity and should be fully abolished.
Global Human Rights Federation president S. Shashi Kumar said international human rights principles are interpreted differently across jurisdictions, with states retaining sovereignty over their criminal justice systems.
He added that the Federal Court has ruled judicial caning does not violate Articles 5 and 8 of the Federal Constitution and remains lawful under statutes such as the Penal Code, subject to strict safeguards and judicial oversight.
“Domestically, it is a regulated form of punishment used for deterrence.
Internationally, however, there is divergence. Some bodies see corporal punishment as incompatible with evolving human rights standards, while others recognise differing legal systems.”
Addressing concerns over potential serious harm, Shashi Kumar said such claims are often overstated, citing legal safeguards that include medical supervision and mandatory fitness assessments.
“These safeguards ensure the punishment is carried out within controlled limits and does not exceed lawful boundaries,” he said.
On Malaysia’s global standing, he said the impact is expected to be limited as the country is not party to certain treaties that explicitly prohibit corporal punishment.
“Differences in legal systems are expected, and divergence does not necessarily amount to noncompliance with international obligations.”
He also said Malaysian courts may continue to develop interpretations of “life” and “personal liberty” under Article 5, which has previously been linked to dignity and quality of life.
He added that any evolution would depend on judicial reasoning, legal arguments and legislative intent, with courts generally taking a cautious approach.
Shashi Kumar outlined possible legal avenues going forward, including constitutional challenges, procedural challenges relating to medical compliance and strategic litigation aimed at narrowing the scope of caning.
