THE nation’s highest court has delivered a significant ruling affirming that caning remains a constitutionally permissible form of punishment, rejecting a challenge brought by inmates and underscoring the legislature’s authority over criminal sentencing.
In a 2–1 majority decision, Chief Justice Datuk Seri Wan Ahmad Farid Wan Salleh held that judicial whipping does not violate the Federal Constitution, specifically Articles 5 and 8, which guarantee the right to life and personal liberty, and equality before the law respectively.
The case arose from an application by three prisoners seeking to nullify their whipping sentences under Rule 137 of the Rules of the Federal Court. They contended that the punishment posed a risk of death and was arbitrary in nature.
The court, however, concluded that caning is not designed to deprive life in the same manner as capital punishment and therefore does not amount to a constitutional breach.
“By their very purpose, penalties are designed to be punitive. To isolate whipping as uniquely cruel or degrading is to ignore the reality that all forms of lawful punishment, to some degree, infringe upon the personal dignity and comfort of the individual,” New Straits Times cited the Chief Justice saying today.
Central to the applicants’ argument was the 2024 death of inmate Mohd Zaidi Abdul Hamid, who died several days after undergoing caning at Pokok Sena prison. His cause of death was recorded as “septic sequelae due to blunt force trauma to the gluteal region.”
The court found no definitive causal link between the punishment and the death, instead attributing it to a possible intervening factor, including medical mismanagement, which broke the chain of causation.
“To say that the death was a direct result of the sentence of whipping without any clear medical evidence would amount to surmise and conjecture,” the court ruled.
Addressing Article 5, Wan Ahmad emphasised that the burden of proof lay with the applicants to demonstrate a clear constitutional violation, which they had failed to establish.
“A single incidental risk of mortality… is insufficient to discharge the burden of proving unconstitutionality,” he said, adding that the implementation of caning is governed by strict safeguards, including mandatory medical oversight.
The court further dismissed claims that caning constitutes cruel, inhuman or degrading punishment, noting that all criminal sanctions inherently impose hardship and should not be selectively characterised.
On the issue of equality under Article 8, the court ruled that the sentencing framework introduced after the abolition of the mandatory death penalty is both lawful and proportionate.
It observed that Parliament had deliberately retained caning as an alternative to capital punishment, alongside custodial sentences, with clearly defined limits and procedural safeguards.
The judges also held that exemptions from caning for women and certain categories of offenders do not amount to unconstitutional discrimination, but fall within permissible legal distinctions.
Wan Ahmad reiterated that questions surrounding the morality or appropriateness of punishments fall within the domain of Parliament rather than the courts.
“It is not the function of this court to act as a moral arbiter or a ‘super-legislature’,” he said.
The Federal Court also reaffirmed that international treaties do not automatically form part of domestic law unless they are expressly incorporated by Parliament. - April 22, 2026
