PUTRAJAYA, Oct 15 — The Federal Court has reserved judgment on a review application by three prisoners seeking to set aside their whipping sentences on grounds of the potential risk of death.
A three-member panel chaired by Chief Justice Datuk Seri Utama Wan Ahmad Farid Wan Salleh said the decision would be delivered at a later date and that the parties would be notified of the date.
The panel, which also included Chief Judge of Sabah and Sarawak Datuk Azizah Nawawi and Federal Court judge Datuk Lee Swee Seng, heard submissions from the prosecution, defence, and the Malaysian Bar, which appeared as amicus curiae (friend of the court).
The applicants: Mohd Helmi Anuar Mohd Kassim, 45, Kumanaan Anthony Vincent, 40, and J. Sivachandran, 37, contended that the whipping sentence violates Article Five and Article Eight of the Federal Constitution, citing the risk of death following a previous case where an inmate died after being whipped.
The three accused had initially been sentenced to death for drug trafficking or murder, but their sentences were later commuted to 30 years' imprisonment and whipping under the Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Act 2023 (Act 847).
Under the revised sentences, Helmi and Kumanaan each received 24 strokes of the cane, while Sivachandran, convicted of murder, was sentenced to 12 strokes in addition to 30 years in prison.
Lawyer N. Surendran, representing Helmi and Kumanaan, urged the court to allow the review application as the information about a former inmate’s death following a whipping sentence only emerged after their cases were reviewed under Act 847, and therefore could not have been raised during the earlier proceedings.
He argued that the punishment violates Article 5(1), which guarantees the right to life, claiming it may result in deprivation of life without sanction of the law.
Lawyer Rajesh Nagarajan, representing Sivachandran, adopted Surendran's submissions.
Deputy Public Prosecutor Afzainizam Abdul Aziz defended the sentence as lawful and in accordance with current legislation, stressing that strict medical safeguards are in place to prevent excessive harm during whipping.
The procedure is conducted in a measured manner under constant medical supervision and is immediately halted if a prisoner is deemed medically unfit.
He added that the applicants failed to present any medical evidence suggesting they were unfit to undergo the punishment.
Malaysian Bar counsel M.M. Athimulan argued that the whipping sentence also breaches Article 8(2) of the Constitution, which guarantees equality, since only men are subject to caning, while women are exempt.
