I WRITE in response to Dr Siti Mariah Mahmud’s letter (Sunday Star, Oct 9) where she gave her opinion that hudud is a matter of choice for Muslims.

I found Dr Siti Mariah’s letter interesting and would like to thank her for shedding some light on the implementation of hudud in Malaysia.

As a non-Muslim however, her letter has not allayed any of my concerns and worries.

My understanding of Islamic law, gleaned from many books and articles, is that where hudud is implemented, Islamic law of evidence will also be applied.

Dr Siti Mariah referred to the testimony of two righteous persons who must come forward as witnesses in the case of theft to present evidence. I am uncertain about the definition of ‘righteous persons’.

Does this only cover Muslims or non-Muslims? What is the status of two Buddhist, Catholic, Protestant or Hindu persons who can give evidence of the theft?

It may be that theft of the property of this group falls under the definition of ta’zir as the strict evidential requirements cannot be fulfilled.

Dr Siti assures us that the thief will still be punished but not under the laws of hudud. I would be very alarmed by such an explanation as this means that Muslim thieves and robbers will target non-Muslims with the assurance that even if caught red-handed, their punishment will be less harsh than if they were to target Muslims.

I fail to understand how, in these circumstances, PAS can state with confidence that hudud will not affect non-Muslims.

Assuming that I am wrong and that the evidence of ‘two righteous persons’ includes the evidence of non-Muslims witnesses, then I am still troubled by the term ‘righteous’.

This implies that the victim’s character determines if he or she is entitled to justice.

I assume that a drug addict or alcoholic whose handbag has been snatched will not be able to give evidence or bring forward her friends as witnesses to testify against the thief.

If non-Muslims are permitted to give evidence against Muslim thieves, then my next question would be, in which court will the thief be tried?

As hudud is part of Islamic law, and the Ninth Schedule relates to the powers of the State, offences under hudud will probably be tried by the Syariah courts.

Paragraph 1 of List II in the Ninth Schedule of the Federal Constitution makes it clear that the Syariah courts does not have jurisdiction over non-Muslims. How then will the non-Muslim give evidence before the Syariah court?

It may be a simple matter to amend List II to permit non-Muslims to give evidence before the Syariah courts but this means that hududwill affect non-Muslims contrary to claims by PAS.

Further as a non-Muslim, I would be reluctant to support any such amendment as it could be interpreted to extend the jurisdiction of the Syariah court to other areas such as khalwat and zina which are not offences under my religion.

Furthermore, non-Muslims have been repeatedly ordered not to interfere in Islamic affairs or in matters solely within the purview of Islamic authorities or they will face repercussions.

Why then would non-Muslims be willing to submit to the jurisdiction of the Syariah court?

I am also concerned as to how the punishments under hudud will affect non-Muslims.

Currently, offences specific to the Islamic religion under the various State Islamic law enactments are tried by the Syariah courts. Religious officers are authorised to arrest and prosecute offenders.

Hudud covers theft, snatch-theft and armed robbery and like offences which are currently punished under the Penal Code.

There is no distinction between Muslims and non-Muslims in the Penal Code and those convicted of a crime will be imprisoned at the taxpayers’ expense.

If hudud were to be implemented, then assuming that the thief’s hand is chopped off, leaving him unable to work, will my taxes be used to provide welfare to him?

Will I be taxed more heavily to provide welfare payments to thieves who are unable to work or will the Islamic authorities take charge of his welfare using specific taxes such as zakat?

My understanding is that victims of crimes under hudud may choose to forgive the perpetrator of the crime and accept compensation instead.

How will this be carried out if the perpetrator is a drug addict with no means of compensation? Would this amount to one law for the rich and one for the poor?

Rich drug addicts may have family members who are willing to pay large sums to avoid the penalties under hudud. Is there any provision to avoid this?

The current criminal justice system makes the perpetrator pay for his crimes but also allows the victim to move on.

I cannot speak for my fellow non-Muslims but it would be extremely difficult for me to push for a penalty under hudud if my religion does not provide for it.

If I choose the hudud penalty, I will always wonder if it was vengeance or justice that motivated me?

Unlike Muslims, I cannot say that I am following God’s law and my choice will weigh heavily on my conscience.

It could also cause me and others like me, to be victimised by thieves and robbers due to my religious beliefs.

Dr Siti and PAS politicians have reiterated that hudud will not be implemented in a blood-thirsty and overzealous manner. How can they be so sure of this?

PAS itself has had to defend Muslims and non-Muslims from the accusations and actions of zealots so I am puzzled by their comments.

If what PAS means is that it will apply hudud according to the spirit of the law then how does it intend to guarantee that it will be applied in the same manner if another political party were to seize power in the states controlled by PAS?

How will PAS guarantee that hudud will not be applied to non-Muslims in future?

Non-Muslims perceive that their religious rights have been eroded over the last decade and it is unlikely that a guarantee by PAS or anyone else under current circumstances will allay their worries.

I fear that statements that hudud does not concern non-Muslims causes me great consternation and I have taken Dr Siti’s advice and presented my views in the hope that my concerns will be addressed on the points presented and that I will not be threatened for “interfering” in Islamic matters.

CONCERNED NON-MUSLIM,
Petaling Jaya.

As a non-Muslim living in Singapore,  Vivienne Wee has no reason to be affected by Kartika’s whipping sentence.  But she is.

She felt so strongly about it that she wrote an article entitled MALAYSIA/SINGAPORE: WHY SHOULD WE CARE ABOUT KARTIKA?

A founder-member of AWARE, an association of Women for Action and Research , Vivienne, an athropologist,  is determined that fellow Singaporeans sit up and pay attention to issues and concerns on this side of the Causeway.

To find out why, do read her persuasive argument here.

How did you react when you heard in July that a woman was about to be
caned in Malaysia? Did you think something like this? “What’s so bad
about drinking beer? These fundamentalists are too much.” But did you
think that what was to happen to Kartika had anything to do with you?
No?

Actually, the sentence of caning imposed on Kartika is relevant to
you. Perhaps you may say, “But I’m not even Muslim. Why should I
care?” Or you may say, “I am unlikely to be caned. So what does this
have to do with me?”

To use an analogy, even if you are yourself not a victim of domestic
violence, does this mean that you don’t care whether domestic violence
happens? If only those who suffer are to care about their condition,
then there is no need for AWARE to have a hotline.

The AWARE hotline says: “Call us, we care.” We imply that we care for
all women, not just some women. Perhaps you may say, “But Kartika
didn’t call us. What is more, she even accepted the sentence of
caning.”

True, Kartika did resign herself to being caned just to get it over
and done with. This did cause some to hesitate about whether to speak
out against the sentence of caning. There was a debate about this in
email conversations that spanned Singapore, Malaysia, Indonesia, Hong
Kong, Thailand, India, South Africa, Uzbekistan, France, UK and other
countries.

Are you surprised at the number of countries mentioned? Yes, there was
international concern about this sentence of caning of one woman in
Malaysia. Letters were being written to Malaysian ambassadors all over
the world, not to mention the attention of the international media.

Farish Noor (Senior Fellow, S. Rajaratnam School of International
Studies) noted:

The conservative Islamists of Malaysia … simply do not seem to
understand how and why the international community is upset with the
idea of a woman being caned for drinking a pint. …The Mufti of Perak,
Harussani Zakaria…even asked why there was such a fuss being made
about a woman being caned six times when, in his opinion, the
punishment ought to have been 80 lashes instead?

The political cost of caning Kartika

Why was there international concern even though Kartika herself had
accepted the sentence? In the email exchange between feminists across
countries, the following point was made by Shanti Dairium (former
member of the UN Committee for the Elimination of All Forms of
Discrimination Against Women [CEDAW] and founder of International
Women’s Rights Action Watch, Asia-Pacific):

The fact that she [Kartika] does not want to appeal is not the main
consideration. It is not only about her individual rights being
violated and securing a treatment for her that protects her human
rights…. The important issue here is the deterioration of human rights
standards as applied by the State. If the caning takes place, a bad
precedent is set. Furthermore if a person accepts a certain treatment
that violates human rights and harm is done to her, human rights
defenders cannot stand by and say it is her choice. Take the case of
sati in India; there were also arguments that if a widow chooses to
immolate herself then there should be no interference. We have to act
against anything that will contribute to normative standards that go
against human rights.

Perhaps you may argue: “But 6 strokes of the cane would not have
killed the woman. It’s not as bad as sati where the woman is burnt
alive.” Does this mean we should accept practices that inflict
violence as long as these do not kill?

At its 61st Annual General Meeting (17 March 2007), the Malaysian Bar
called for the abolition of whipping as a punishment for any offence
as it is “anachronistic and inconsistent with a compassionate
society.” However, the deputy president of Parti Islam Semalaysia
(PAS), Nasharudin Mat Isa, has spoken against the Malaysian Bar’s
resolution by justifying whipping as enshrined in the Quran and
Hadith.

Whipping is also mentioned as a punishment in the Jewish Talmud and
the Old Testament of the Christian Bible (Deuteronomy 25:2). Chinese
imperial law legalised many forms of torture, including whipping. (See
Tradition of the law and law of the tradition: law, state and social
control by Xin Ren 1997). Indeed, ancient legal codes are replete with
cruel, inhuman and degrading punishments. But should any of these
ancient legal codes be used to justify such punishments today?

In 1984, the United Nations General Assembly adopted the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment. This Convention developed out of article 5 of the
Universal Declaration of Human Rights (adopted by the UN General
Assembly in 1948) and article 7 of the International Covenant on Civil
and Political Rights (adopted in 1966). Both these articles “provide
that no one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment.”

Despite these international Conventions, we are nevertheless
encountering a growing proclivity among some to justify
“anachronistic” punishments in the name of ancient legal codes, often
associated with fundamentalist interpretations of religion. The result
is the making of “normative standards that go against human rights.”

That is why the sentence of caning imposed on Kartika concerns us. If
she were to be caned, not only would she be the first woman ever to be
caned in Malaysia, she would be so punished on the basis of a
particular interpretation of sharia law. It is quite clear that this
is just a particular interpretation, because in Malaysia, only three
states (Pahang, Perlis, and Kelantan) impose whipping as a punishment
on Muslims for drinking, while in the other ten states, they are
merely fined.

It is also clear many Muslims in Malaysia disagree with such a
punishment. Women, Family and Community Development Minister Datuk
Seri Shahrizat Abdul Jalil stated, ““The overriding view was that the
sentence meted out was too harsh and is not commensurate with the
offence…. This one particular case could have damaged the image of
Malaysia in its fair and just implementation of the Shariah law…. I
feel the person concerned should appeal to the state authorities and
not be so willing to accept the punishment.” (New Straits Times 25
August 2009). Even the Malaysian Prime Minister Najib Razak has urged
Kartika to appeal the sentence.

“Very interesting,” you may be saying, “but all this is happening in
Malaysia. So why does it concern us in Singapore?” Kartika is a
Malaysian citizen and a Singaporean permanent resident. So what
happens to her is of concern to us as Singaporean citizens and
permanent residents.

Moreover, what happened to her can also happen to a Muslim woman who
is a Singaporean citizen and who is found drinking in one of those
three states. The President of the Malaysian Syariah Lawyers
Association, Mr. Mohd Isa Abdul Ralip, pointed out: “All Muslims,
regardless of whether they are tourists or Malaysians, are subject to
local Islamic laws” (The Straits Times, 24 July 2009).

If Kartika were to be caned, it would set a dangerous precedent for
the caning of Muslim women in Malaysia, “regardless of whether they
are tourists or Malaysians.” As noted by Farish Noor, “The costs of
caning Kartika are simply too high, and should that line be crossed
the country would have jumped one rung up the Islamisation ladder yet
again.” This would have serious implications beyond Malaysia.

For all these reasons, AWARE is right to have co-signed with seven
Malaysian women’s organisations, one other Singaporean organisation
(Maruah) and one Indonesian women’s organisation, a letter sent to the
Office of the High Commissioner for Human Rights in Geneva, addressed
to the UN Special Rapporteur on Violence Against Women, the UN Special
Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, and the High Commissioner for Human Rights.

We are glad that the voicing of national and international concern
seems to have produced a tentatively positive result. The caning is
now deferred, pending a legal review. However, the saga is not over.
On 11 September 2009, the Pahang Islamic Religious Department
announced that it is still prepared to proceed with the caning of
Kartika Sari Dewi Shukarno after Hari Raya Aidil-fitri. But the
implementation of the punishment would depend on the review by the
Kuantan Syariah High Court Appeals Panel, expected to be concluded
after Raya. So we still have to wait and see what the outcome of that
review will be.

Vivienne Wee

The writer is a founder member of AWARE, an anthropologist and,
needless to say, a feminist.

When I wanted to take a picture of her, she shook off the shawl covering her lovely brown hair. “Won’t you get into trouble if this picture gets into the government’s hands?” I asked, worried for her safety. “I don’t care. I love Islam  but I hate the Islamic state. It is unIslamic in every sense of the word,” she declared.

Today, Malaysia is experiencing creeping Talibanisation which, by the way, has nothing to do with Islam. To stop the selective persecution of people, much of which has been done in the name of the religion,  we must actively introduce the diversity of thought, opinion and ideas that have kept Islam a vibrant and dynamic faith for hundreds of years.

If you haven’t, do read Zainah’s article which appeared in the Star on Oct 4, 2009.

KAREN ARMSTRONG says any belief that makes you compassionate, kind and respectful of others is good religion. If your belief makes you intolerant, unkind and belligerent, this is bad religion, no matter how orthodox it is.

This seems like great common sense to me. It puzzles me why those who insist that Kartika Sari Dewi Shukarno be caned because that is what Islam demands fail to see the many injustices of her case.

She was a first-time offender; she showed remorse and pleaded guilty; and there was no violence in the commission of the offence. Under normal sentencing guidelines, she would have received an automatic one-third remission of the sentence.

Close-knit family: Kartika holding her five-year-old daughter Wann Kaitlynn Muhammad Afandi with her husband Muhammad Afandi Amir and her seven-year-old niece Puteri Nur Rania Suhaini during the Hari Raya open house at her parents’ house in Kuala Kangsar on Sept 24.

But Kartika was sentenced with the maximum fine of RM5,000 and six strokes of the rotan for drinking a glass of beer.

And the Mufti of Perak, Datuk Seri Harussani Zakaria, questions why all the fuss for just six strokes of the rotan when Kartika should have been punished with the full “Islamic” 80 lashes.

And there was Datuk Rosman Ridzuan, the chairman of U Mobile, who was fined only RM700 when he pleaded guilty for assaulting his now ex-wife. Under Section 323 of the Penal Code, this domestic violence offence carries a maximum fine of RM2,000 or one-year imprisonment.

But I am sure those who feel Kartika should be caned are shaking their head and wondering why Datuk Rosman should in the first place be charged and fined for beating his wife, and why indeed should the state intervene in what they deem to be a family matter.

A person who causes harm to another he is supposed to love, cherish and protect is fined a few hundred ringgit, while a young woman trying to make it in life gets the maximum sentence for drinking a glass of beer – which she did not even finish, she said.

And just recently in the same Kuantan Syariah Court, an odd-job Indonesian man who spent RM3.20 for a bottle of samsu which he shared with two other friends in a moment of respite was jailed for a year with six strokes of the rotan. He is in prison because he could not afford to pay the RM5,000 fine.

And yet, we all know that every day, thousands of Muslims commit what are deemed to be offences under the all-encompassing Syariah Criminal Offences (SCO) laws and get away with it. I know of a certain Tan Sri who leaves his collection of expensive bottles of wine in the wine cooler of his favourite restaurant. His bottles are labelled, just like the expensive shampoo and conditioner bottles left by regular clients at their favourite hairdressing salon.

What riles me up every time the Syariah Criminal Offences law is enforced is the injustice of it all. It is often always the disadvantaged and powerless in society who are targeted. While those in powerful places are free to lead the lifestyle they choose, ordinary Muslims feel suffocated and oppressed that what they wear, do, drink, and where they hang out with their friends render them to arbitrary arrest and surveillance by the religious police.

Thousands of young men and women are caught and charged for khalwat, for which they meekly plead guilty in order to avoid further embarrassment. And for what great crimes against the state? The offence of “sitting together on a bench in a shopping complex with the man having his arm on the woman’s back; holding the woman’s waist while walking in a shopping complex; sitting closely and holding hands; sitting on a bench with the woman leaning on the man’s shoulder; sitting in the dark under a tree in a park; sitting on a bench in the dark by a lake”.

Why are Syariah Court resources, which are already stretched out, spent on prosecuting such offences, but women’s right to divorce, to maintenance, to compensation, to a share of the matrimonial assets are denied or delayed?

And how come these enforcement officers have all the resources and time in the world to go after young Muslims doing what young people usually do, and to barge into homes and hotel rooms in pursuit of amorous couples which have led to death and injury to those running away in panic, and to detain even those found in innocent circumstances?

Shouldn’t their resources and time be better spent going after the thousands of errant fathers who fail to pay child support? Why are the religious zealots impervious to the harm these men cause to their children and the family they left behind, and the impact of such gross neglect on society as a whole?

And how come Kajang Prison can execute the caning of Kartika who was sentenced in Pahang under state law, and yet a mother cannot enforce a maintenance order issued by the Kuala Lumpur Syariah Court against a father who has moved to Petaling Jaya?

It is tough being Muslim in this country as the list of the forbidden grows longer. And it’s a double whammy if you are young, and triple whammy if you are a woman. Just for being Muslim, you run the risk of being arrested and hauled into a lorry should the pub or club you are in be raided by the moral police. God forbid if there is alcohol on your breath or your dress is deemed too short, too revealing, too tight.

As with those caught for demonstrating, most of those detained for being Muslim in the wrong place are eventually released because they are in the pub or club to just listen to music or to hang out with their friends over a glass of coke. But the experience in the hands of the religious authorities is enough for a mountain of resistance and defiance to build up.

Since the public furor over Maslinda Ishak, where a Rela officer took a picture of her while she was relieving herself in the lorry used for these raids, the Zouk raid where 100 young Muslims were arrested, the raid on an elderly American couple on holiday in Langkawi and the spate of state attempts to establish citizens’ snoop squads to spy on courting couples and other errant Muslims in Terengganu, Malacca and Selangor, things have largely been quiet for a while on the moral policing front.

The former Prime Minister, Tun Abdullah Ahmad Badawi, had taken a clear stand that his Cabinet disapproved of such moral policing raids and intrusion into private lives. The Minister for Law, Datuk Nazri Aziz, had also warned against the “Talibanisation” of Malaysia following the Zouk raid.

Then came the appointment of the new Minister for Religion, Maj-Gen (R) Datuk Jamil Khir Baharom, in March. And a seminar on caning for syariah crimes was held in April, and the minister said he was most unhappy that the Syariah Courts hardly ever impose the caning sentence. He said the light sentences meted out contributed to the rise in syariah crimes every year. And now a sudden wave of caning sentences by the Syariah Courts and the determination to uphold such sentences no matter the national and international implications and cries of injustice.

In Selangor, where the PAS Commissioner Hassan Ali is the state Exco member in charge of religion, mosque officials were to be empowered to arrest Muslims for drinking alcohol. But his unilateral act incurred not just the ire of his colleagues in the Pakatan-led state government, but also the Sultan of Selangor.

Reading through the list of offences under the Syariah criminal laws of the various states, you wonder how in the world those responsible for these laws think they could be enforced. Well, the Federal Territories Reli­gious Department (JAWI) has set up a 24-hour hotline, and PAS Youth in Terengganu wants to set up a vigilante squad to advise courting couples to desist.

All those legal drafters and Islamic scholars who created the long list of offences and punishment, the Cabinet and state excos who approved them, and Parliament and the legislative assemblies that enacted them … wasn’t anyone thinking through the implications of such violations of privacy and personal rights, and to the kind of society and citizenship this will create?

And still there are those who are demanding that the list of syariah offences be expanded to include all actions deemed against the teachings of Islam and the court’s powers to punish be enhanced beyond the current maximum of three years imprisonment, RM5,000 fine and six strokes of the rotan.

Unless we truly want to turn Malaysia into a police state as in Iran and Afghanistan under Taliban rule – where moral police are at every street corner, every office, every campus – such laws that turn every perceived sin into a crime against the state will only result in selective persecution and victimisation. It is also simply unenforceable because there is no public consensus on what constitutes indecent behaviour that merits regulation and punitive action.

In the end, such moral policing laws will erode the credibility and survival of both the law and the law-making process, says Prof Hashim Kamali who now heads the International Institute for Advanced Islamic Studies, in a study on te SCO legislation.

That this is already the case in Malaysia is obvious. The continual public outrage, the abuses that occur, the need for the federal government or the Sultan to intervene, the release of most of those detained, the apologies that the religious departments have had to extend to those victimised and abused, the damages (Maslinda was recently awarded RM100,000) and compensation (to the Langkawi couple) that the Government has had to pay, the international damage it does to Malaysia’s effort to promote itself as a model moderate and progressive Muslim country.

So the question before the Government is this: Review the Government’s coercive and punitive position on Islam for a more nurturing and compassionate approach; or enhance further the powers of the religious authorities to control the lives of Muslims and punish them ever more harshly, and consequently bring Islam, Islamic law and the religious authorities into further disrepute. Just look at Iran.

This story from the BBC underscores the painful fact that Muslim nations are returning to the DARK AGES.

Indonesia’s province of Aceh has passed a new law making adultery punishable by stoning to death, a member of the province’s parliament has said.

The law also imposes severe sentences for rape, homosexuality, alcohol consumption and gambling.

Opponents had tried to delay the law, saying more debate was needed because it imposes capital punishment.

Sharia law was partially introduced in Aceh in 2001, as part of a government offer to pacify separatist rebels.

A peace deal in 2005 ended the 30-year insurgency, and many of the former rebels have now entered Aceh’s government, which enjoys a degree of autonomy from the central government in Jakarta.

The legislation was passed unanimously by Aceh’s regional legislature, said assembly member Bahrom Rasjid.

“This law will be effective in 30 days with or without the approval of Aceh’s governor,” he said.

The governor of Aceh, a former rebel with the Free Aceh Movement, is opposed to strict Sharia law. He had urged more debate over the bill.

‘Moral degradation’

Married people convicted of adultery can be sentenced to death by stoning. Unmarried people can be sentenced to 100 lashes with a cane.

Previously, Aceh’s partially-adopted Sharia law enforced Muslim dress codes and mandatory prayers.

“This law is a preventive measure for Acehnese people so that they will avoid moral degradation,” said Moharriyadia, a spokesman for the Prosperous Justice Party.

A new parliament will be sworn in next month, after local polls saw the moderate Aceh Party win the most seats in the provincial assembly.

The Aceh Party has said it will review the law once the new parliament is sitting.

“It needs more public consultation. We need to involve the ulemas – the Islamic clerics – in drafting the law,” said Adnan Beuransah, a spokesperson for the Aceh Party.

About 90% of Indonesia’s 235 million people are Muslim, practising a moderate form of the religion.

We proudly witnessed the presentation of this memorandum to the Prime Minister at the National Women’s Day event yesterday.

MEMORANDUM

on

JUSTICE FOR KARTIKA

STOP WHIPPING, END CORPORAL PUNISHMENT FOR ALL OFFENCES

to

YAB Dato’ Sri Mohd Najib bin Tun Abdul Razak,

Prime Minister of Malaysia,

Submitted by

The Joint Action Group for Gender Equality (JAG)

25 August 2009

Sisters in Islam (SIS), 7 Jalan 6/10, Petaling Jaya, 46000 Selangor, Malaysia. Tel: 60 3 77856121 Fax: 60 3 77858737

Email: sisters@sistersinislam.org.my

Women’s Aid Organisation (WAO). P.O. Box 493 Jalan Sultan, 46760 Petaling Jaya, Selangor, Malaysia. Tel: 60 3 7957 5636 / 0636

Fax: 60 3 7956 3237 Email: wao@po.jaring.my

Persatuan Kesedaran Komuniti Selangor (EMPOWER), 13 Lorong 4/48E, 46050 Petaling Jaya, Selangor, Malaysia. Tel: 60 3 778449777

Fax: 60 3 77844978 Email: empower05@gmail.com

All Women’s Action Society, 85 Jalan 21/1, Sea Park, 46300 Petaling Jaya, Selangor, Malaysia. Tel: 60 3 78774221

Email : awam@awam.org.my

Women’s Centre for Change (WCC), 24 Jones Road, 10250 Penang, Malaysia. Tel: 60 3 2280342 Fax: 60 3 228578

Email: wcc@wccpenang.org

JUSTICE FOR KARTIKA

The Joint Action Group for Gender Equality (JAG) appeals to YAB Dato’ Sri Mohd Najib bin Tun Abdul Razak to take immediate steps to address the issue of the sentence of whipping meted out to Kartika Sari Dewi Shukarno.

JAG also urges the government to review whipping as a form of punishment as it violates international human rights principles which regard whipping and other forms of corporal punishment as cruel, inhuman and degrading treatment. Moreover, research has shown that whipping is not an effective deterrent, even to violent or sexual crimes.

The court’s decision to whip Kartika for consuming alcohol has led to a public outcry at the national and international levels, damaging Malaysia’s reputation as a moderate Muslim country. It also fuels the widespread belief that Islam is a religion that discriminates against women. While civil law in Malaysia prohibits the caning of women, syariah law makes no such exception.

JAG believes there are compelling reasons why Kartika’s case should be reviewed – on syariah, constitutional and legal grounds, international human rights principles, and based on sentencing guidelines. They include:

Syariah Grounds

(i) Qur’anic teachings emphasise repentance, forgiveness and personal transformation. Even the verses on punishment for theft (Surah Al-Maai’dah 5:38-39) and robbery (5:33-34), emphasise that an offender who repents after his crime and amends his conduct, is redeemed, as God is forgiving and merciful.

(ii) Kartika has repeatedly expressed remorse and repented for her action. She should be forgiven, instead of be given the maximum punishment.

(iii) There is no consensus in Malaysia on the range of crimes for which whipping is prescribed,. Only Pahang, Perlis and Kelantan provide whipping for alcohol consumption under their Syariah Criminal Offences Codes.

Sentencing Guidelines

(iv) Under normal sentencing guidelines, Kartika should not have been given the maximum punishment as she had pleaded guilty, was a first time offender and has shown and continues to show remorse.

(v) The whipping sentence is also disproportionate to the gravity of the offence committed, especially since there was no violence involved in the commission of the offence.

(vi) When an accused pleads guilty, it is a mitigating factor. Therefore, the judge should have taken that into consideration in favour of the accused, and should not have meted out the maximum sentences in terms of the fine imposed and number of strokes for whipping.

Constitutional and Legal issues

(vii) Can the Kajang prison which is established under Federal law execute an order issued by the syariah court which is under state jurisdiction?

(viii) Can a Federal authority execute a sentence of whipping against a Muslim woman when the Prison Regulations 2000 forbids corporal punishment to be applied to a female prisoner (of any age), or a male prisoner who is more than 50-years-old?

(ix) Can the Pahang Syariah Court simply impose an additional sentence of imprisonment for seven days after the trial had ended and the case deemed closed, just for the punishment of whipping to be carried out?

(x) The victimisation of Kartika violates constitutional guarantees of equality and non-discrimination under Article 8(2) of the Federal Constitution. Under federal law, a woman cannot be whipped, but under syariah, she can. Daily, thousands of Muslims violate the syariah law which forbids alcohol consumption. And yet, Kartika is victimised with the maximum punishment to set an example to others.

(xi) Is it the duty of the state – in order to bring about a moral society – to turn all “sins” into “crimes against the state”? Or should this be private morality best left to the religious conscience of the individual, rather than be deemed public morality and turned into a matter of law? As practice shows, the enforcement of such moral policing laws has often led to controversies, abuses and public outcry. In the end the Federal Government intervenes and those arrested are released.

International Obligations

(xii) As a signatory to the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) since 1995, Malaysia is committed to uphold respect and equality for women. This commitment is complimented by Malaysia’s obligations under the Universal Periodic Review whereby Malaysia’s delegation had during the UPR process in February 2009 reaffirmed Malaysia’s “respect for human rights long established given the country’s character as a melting pot of various cultures, religions and ethnicities”.

(xiii) Malaysia is also committed to the 1988 ASEAN Declaration on the Advancement of Women, the 2004 ASEAN Declaration on the Elimination of Violence against Women and the 2005 Putrajaya Declaration and Programme of Action on the Advancement of Women in Member Countries of the Non-Aligned Movement.

In the long term, we urge the Government to conduct a comprehensive review of the Syariah Criminal Offences laws of this country, with a view to repeal such laws, thus enabling all Malaysians to be governed by a single Penal Code under federal administration.

In 2005, Sisters in Islam , a member of JAG submitted a memorandum to the Government to reiterate its call for the Syariah Criminal Offences laws to be repealed on the grounds that they have no basis in Islamic legal theory and practice; they conflict with the Federal Constitution and that they conflict or overlap with the Penal Code and other federal laws. SIS had commissioned two reviews by Professor Muhammad Hashim Kamali and Professor Shad Saleem Faruqi and these have been shared with the Government.

The Government must show the political will and courage to once and for all deal with the implications of such intrusive moral policing laws. The implementation of these laws continues to raise numerous profound and controversial issues at the Islamic, constitutional, and human rights levels. They also fail to reflect the changing realities of Malaysian life today. The continual public outrage over moral policing laws reflects the disconnect between state control of private lives and personal choices, and how Malaysians view their entitlements to these rights. This can no longer remain unresolved.

Joint Action Group for Gender Equality

25 August 2009