Deputy public prosecutor Afzainizam Abdul Aziz said the trio’s review applications were influenced by media coverage surrounding the death of Zaidi Abdul Hamid at Pokok Sena prison in Kedah last week.
“They are attempting to infer that Zaidi was healthy and died as a result of the whipping,” Afzainizam told a three-member bench chaired by Chief Justice Wan Ahmad Farid Wan Salleh.
Also on the panel hearing the applications were Chief Judge of Sabah and Sarawak Azizah Nawawi and Justice Lee Swee Seng.
Zaidi, who was serving a 33-year prison sentence for murder, died from “septic sequelae to blunt force trauma to the gluteal region” following caning administered on Sept 25 last year.
Afzainizam was submitting to oppose revision applications filed by the trio under Rule 137 of the Federal Court Rules 1995.
In their applications, the three men sought to have their whipping sentences set aside, arguing that the punishment violates their constitutional rights under Articles 5 and 8 of the Federal Constitution.
J Sivachandran had previously been sentenced to death for murder, while Helmi Anuar Kasim and A Kumanaan were both sentenced to capital punishment for drug trafficking.
However, the Federal Court last year revised their custodial sentence to 30 years’ imprisonment each. It also ordered that Helmi and Kumanaan receive 24 strokes of the rotan each for two trafficking offences, while Sivachandran was to receive 12.
The sentence revisions were made pursuant to a provisional law enacted in 2023 following Parliament’s abolition of the mandatory death penalty.
Afzainizam argued that the trio’s bid for exemption could only succeed if backed by medical evidence.
Further, he said, they should have filed motions seeking a declaration that whipping was unconstitutional, instead premising their applications on procedural unfairness.
“As of now, the punishment by whipping remains legal as provided under the Penal Code and Dangerous Drugs Act,” he said, adding that the application should be dismissed as the applicants had failed to cross the review threshold.
Afzainizam said the applications were filed merely as a last-ditch attempt to evade the whipping sentence.
He also said it was for Parliament to decide whether whipping should remain on the statute books.
Lawyer N Surendran, appearing for the applicants, submitted that the requirements of Rule 137 have been satisfied, and that it was the only remedy available to the trio based on the facts and circumstances of their cases.
He said whipping, being a cruel, inhumane and degrading punishment, contravenes the applicant’s right to life and liberty under Article 5 and their right to equal protection of the law as afforded by Article 8 of the constitution.
“The death of Zaidi has now opened up the question of whether whipping is unconstitutional for being contrary to Articles 5 and 8,” he said.
Surendran, a former MP, also argued that whipping was a pre-Merdeka legislative imposition, and that the court has the authority to repeal it under Article 162(6) of the constitution.
He said it is for the court, and not the legislature, to decide whether there has been a violation of fundamental rights.
Counsel M Athimulan, appearing for the Malaysian Bar as amicus curiae (friend of the court), submitted that whipping was discriminatory on the basis of gender, as women were exempted from this form of punishment.
The bench has reserved its ruling.