Caning Sentence Unconstitutional As It Poses Death Risks Lawyer

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Three offenders, who applied to have their caning sentences reviewed and set aside, claimed that the punishment is inhumane, cruel and infringes on their rights under the Federal Constitution as it posed a death risk to them, the Federal Court heard today.
Their lawyers, N Surendran and Rajesh Nagarajan, backed their submissions in saying that the caning punishment infringes on individuals’ rights under Article 5, which was the right to life, and Article 8 of the Constitution, which is on individuals’ rights to equality.
Surendran, who orally submitted to the panel chaired by Chief Justice Wan Ahmad Farid Wan Salleh today, further said that caning is a pre-Merdeka law that ought to be repealed under Article 162(2) of the Constitution, which allows the court to decide on matters involving fundamental rights violations.
“There is a real-life threatening risk that exists against them (the offenders) should the sentence be carried out pursuant to the court order.
“The caning punishment is contrary to Article 5(1) of the Constitution, as the sentence may result in deprivation of life, as it carries the risk of death.
“The sentence is also a punishment that is arbitrary and disproportionate, which contravenes Article 8(1) of the Constitution,” said Surendran, whose submission was adopted by Rajesh.
Surendran appeared for two offenders, Helmi Anuar Kassim and Kumanaan Anthony Vincent, who were each sentenced to 60 years in jail and 24 strokes of the cane for two counts of drug-related offences under Section 39B of the Dangerous Drugs Act 1952.
Rajesh represented Sivachandran Jayarajah, who was sentenced to 30 years in jail and 12 strokes of the cane for a murder offence under Section 302 of the Penal Code.
The offenders filed their application following the death of a Pokok Sena Prison inmate, Zaidi Abdul Hamid, whose caning sentence was executed on Sept 25 last year, in which his cause of death was identified as “septic sequelae due to blunt force trauma to the gluteal region”.
Zaidi’s death occurred just 10 days before the Federal Court upheld the caning sentences on Helmi, Kumanaan, and Sivachandran, on Oct 7, 2024, which saw the three then filed their application as they believe their rights to life pursuant to Article 5 of the Constitution would be severally prejudiced if similar sentence was carried out against them.
Presiding in today’s hearing together with Wan Ahmad Farid was Chief Judge of Sabah and Sarawak Azizah Nawawi, and Federal Court judge Lee Swee Seng.
DPPs rebut
Deputy public prosecutors Afzainizam Abdul Aziz and Fuad Abdul Aziz rebutted Surendran’s submissions in saying that the caning sentence cannot be unconstitutional as it is a punishment provided under the law.
Afzainizam further submitted that the imposition of the caning sentence does not run afoul of Article 5(1) of the Constitution since the process to ensure a fair trial to determine the applicant's innocence or guilt was judicially exercised.
“A ‘sentence according to law’ means that the sentence must not only be within the ambit of the punishable section, but it must also be assessed and passed in accordance with established judicial principles,” he said.
He also submitted that there are safeguards in place to ensure the present practice of caning does not breach the high threshold of severity and brutality.
ADS“Caning is administered on the prisoners’ buttocks (where) the strokes of the cane are meted out in a measured and controlled manner at regular intervals, rather than a haphazard and capricious fashion.
“There is constant medical supervision throughout the entire process, and the caning will be stopped if the medical officer is of the view that the prisoner is unfit to continue undergoing the sentence,” he said.
He added that the applicants basing their application on the inmate’s death is a weak basis, as there is no medical evidence indicating the inmate’s death was the immediate result of the caning.
The judges then said they will reserve their judgment before adjourning today’s proceeding. - Mkini

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