A COMPARATIVE LEGAL STUDY ON CANING PUNISHMENT IN ACEH AND KELANTAN IN RELATION TO THE PROHIBITION OF TORTURE AND ILL-TREATMENT

Caning remains a criminal sanction implemented in Aceh, Indonesia, under the special autonomy framework given effect through the Qanun Jinayat, and in Kelantan, Malaysia, under the Syariah Criminal Code enacted pursuant to the constitutional allocation of Islamic law to state legislatures, a practice whose compatibility with the prohibition of torture and other cruel, inhuman, or degrading treatment or punishment remains contested, giving rise to the problem examined in this study.

This research aims to comparatively analyse the legal basis and legal construction of caning in Aceh and Kelantan and to examine whether its implementation is compatible with international human rights law. The study employs normative legal research using statutory, conceptual, comparative, and human rights approaches, drawing on primary, secondary, and tertiary legal materials.

The study employs normative legal research using statutory, conceptual, comparative, and human rights approaches, drawing on primary, secondary, and tertiary legal materials. The collected legal materials are analysed using qualitative descriptive analysis, involving the systematic examination and interpretation of relevant legal provisions and the comparison of the regulatory frameworks in Aceh and Kelantan.

The findings show that although Aceh derives its authority from special autonomy and Kelantan from federal allocation of legislative competence over Islamic law, both jurisdictions converge doctrinally in grounding caning within maqasid al-syariah as an instrument of deterrence and moral education, while diverging in permissible intensity, Aceh authorising up to one hundred strokes against Kelantan's maximum of six. Both present significant compatibility challenges with the prohibition of torture and ill-treatment, displaying asymmetric risk profiles as Aceh's wider stroke range and history of public execution generate more acute concerns than Kelantan's lower ceiling and closed-setting practice.

The study suggests that continued comparative legal understanding and further scholarly engagement with syariah-based criminal law and international human rights law offer the more appropriate direction for future research.