Many have asked as to why I wrote, ‘Isu Sebatan – Islam atau Politik’ in Bahasa Malaysia [“BM”] rather than English. There are 2 reasons for this. Firstly, there are many other more capable writers who can express the same issues (and who have done so) in English. Secondly (and more importantly), writing in English feels like preaching to the converted. My main intention was to provide some fodder for thought to the BM only readers out there. The same target audience that is being constantly fed with misinformation by the mainstream BM media. The audience that forms the bulk of the voter bank in Malaysia and who have the power to shape the country whether the rest of us like it or not. Unfortunately for those who prefer BM (either by choice or not), the alternative media does not provide as many write ups or coverage to balance off the onslaught of misinformation by the mainstream media. Hence the reason the article was written in BM.
I have also received a few ‘critical’ observations on the article. The main criticism is that I am looking at Syariah in the perspective of a western trained civil lawyer and as such I may not understand the intricacies of the laws. I disagree with that observation. I have dealt with the sections in the relevant Acts as it is drafted. I am not looking as to whether it is right or wrong or taking into account the Quran or Sunnah. I also believe that the accepted principles of natural justice are compatible with Islam. General maxims of natural justice like, ‘audi alteram partem’ (the right to be heard), ‘nemo judex causa sua’ (nobody shall be a judge in their own cause) and the concept of justice must be seen to be done are universal principles. The article I wrote merely highlight the circumstances surrounding the revelation by the Home Minister and the apparent flaws pertaining to the sentencing in light of the very same enactments used.
There is also the issue of the manner in which the enactments have been drafted. See section 23 subsection (3) and (4) on the presumptions that can be made without there being express fail safe mechanism to prevent the risk of injustice. It is scary to say the least.
The translation comes with slight changes to suit the language. Please take note that I have used the word ‘caning’ and ‘whipping’ interchangeably. The media have used ‘caning’ whilst the English version of the Act in question uses the word ‘whipping’. Here goes…..
The revelation by the Home Minister on the caning carried out on 3 women for the offence of sexual intercourse out of wedlock pursuant to section 23 of the Syariah Criminal Offences (Federal Territories) Act 1997 [“Act”] has resulted in the creation of another ‘controversial’ issue for the Malaysian public. This is unfortunately just one of the many ‘controversial’ issues which have cropped up in recent times with all sharing a common recurring theme; it will be politicized to the hilt by the powers-that-be.
This new issue relating to the 3 women is no different. There have been many questions which have not been answered, among others,
a. Why did the Home Minister disclose the caning to the general public after it had been carried out when it is general knowledge that this issue has caused uneasiness when Kartika was sentenced to be caned.
b. Why the Syariah Court is so determined to use the Act to cane these women when the same Act has a section on Liwat (sodomy) which was not used on Anwar Ibrahim?
c. Does the Syariah Court have the power to impose such a punishment when the Penal Code expressly provides that women cannot be subject to caning (no matter how it is carried out)?
d. Did the Syariah Court impose the caning sentence purposely to demonstrate that it does have the ‘power’ to do so and as such at par with the Civil Courts despite the fact that the general consensus is that the Syariah Courts are a subsidiary branch of the judiciary under the Constitution?
e. Was the caning done on purpose to show that the government is more ‘Islamic’ than PAS and at the same time to bait the opposition to criticise the punishment so as to make it easier to label them ‘anti-Islam’ as how it was done for the ‘Allah’ issue and the Prophet’s birthday march?
For me, based on the conduct by the religious authorities under the control of the central government recently, it is very difficult to accept that the caning of the 3 women was done based on Islam (in the true and honest sense) and not merely another ‘move’ in the political chess game by utilising the Islamic institutions. If it was based solely on Islam in the true sense, I am sure that the Syarie Lawyers Association or the Council of Muftis would have not kept silent when Anwar Ibrahim was charged in the Criminal Courts when there is a clear and express provision relating to the exact offence in the Act.
To further support the theory that the caning was merely a political manoeuvre utilising Islam, lets look at the offence committed by the 3 women. From the media coverage, the facts as we know it are as follows:
a. The 3 women were caned when they were found guilty under section 23(2) of the Act;
b. The Minister in the Prime Minister’s Department, Datuk Seri Jamil Khir Baharom said that, “They showed remorse as they felt that the punishment released them from sin and the feeling of guilt towards Allah S.W.T.,”
http://www.utusan.com.my/utusan/info.aspy=2010&dt=0218&pub=Utusan_Malaysia&sec=Terkini&pg=bt_24.htm
c. One of the women is 17 and was pregnant when she was still in school;
d. A second woman said she had to support her family after her father left home and had a three-year-old daughter out of wedlock.
e. They turned themselves in due to feelings of guilt. They were not arrested;
f. The punishment was carried out at Kajang Prison at 10 am on 9 February. 2 of them were caned 6 times whilst the other received 4 strokes. One of them was released last Saturday after serving one month prison sentence. Another will be released in a few days and the third will be released in June.
g. The Home Minister was quoted to have said that based on his meeting with the 3 women, he found that they have repented and they accept the punishment meted out although the caning did not cause any injuries. He hopes that the punishment would not be misconstrued to the extent that it smears the sanctity of Islam. The punishment is to educate and make them realise that even though they have strayed, they still can come back to the straight path and build a better life for themselves.
Fair Punishment?
The question that needs to be asked is whether based on the facts as we know it, the imposition of the caning commensurate the crime that was committed. Based on the section in the Act, it is difficult to see how the Judge could have imposed such a hefty sentence for first time offenders. They were caned and imprisoned.
Section 23 of the Act provides,
23. Sexual intercourse out of wedlock.
(1) Any man who performs sexual intercourse with a woman who is not his lawful wife shall be guilty of an offence and shall on conviction be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to whipping not exceeding six strokes or to any combination thereof.
(2) Any woman who performs sexual intercourse with a man who is not her lawful husband shall be guilty of an offence and shall on conviction be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to whipping not exceeding six strokes or to any combination thereof.
(3) The fact that a woman is pregnant out of wedlock as a result of sexual intercourse performed with her consent shall be prima facie evidence of the commission of an offence under subsection (2) by that woman.
(4) For the purpose of subsection (3), any woman who gives birth to a fully developed child within a period of six qamariah months from the date of her marriage shall be deemed to have been pregnant out of wedlock.
Based on subsection (2) above, if found guilty, the office is punishable by a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to whipping not exceeding six strokes or to any combination thereof . The operative word there is ‘OR’. This means that the Judge can use his discretion based on the surrounding circumstances of the facts to choose the punishment to be imposed. Here, he chose to whip AND imprison.
Whipping is also the heaviest punishment under the syariah enactments of Wilayah Persekutuan. This can be seen in Section 133 of the Syariah Criminal Procedure (Federal Territories) Act 1997 [“Procedure Act”] which states,
133. Power to commute punishment.
The Yang di-Pertuan Agong on the advice of the Mufti may. without the consent of the person sentenced, commute any one of the following sentences for any other mentioned after it, namely-
(a) whipping;
(b) imprisonment;
(c) fine.
Based on this section, in terms of ranking, the heaviest penalty would be whipping followed by imprisonment and the lightest being a fine. Here, there 3 women were sentenced with the heaviest punishment ie whipping. Perhaps the Judge can justify the same since one of the women has a child and is supporting her family and as such imprisonment may not be appropriate. However, all 3 women were also sentenced to imprisonment as well! They surrendered voluntarily and they were all repentant. Yet they are punished with the heaviest form of punishment? Is this the compassion in Islam?
Furthermore, every organisation and writer who is in support of the imposition of the caning take the line that whipping in Islam is to educate rather than injure or punish. If that was true, then why does the Procedure Act expressly provide that whipping is the most severe and heaviest penalty? If it was to educate, would it not be more appropriate for them to be subject to community service or be imposed a good behaviour bond (which is also provided for under section 129 of the Procedure Act) since they were first time offenders?
Another issue on the caning, according to one woman, it was fast and not painful. If it was fast and not painful and only to ‘educate’, then why cane when you take into account all the controversies surrounding the issue, in both the legal and social sense? All these factors seem to point to one direction, i.e. that it is a political manoeuvre and not an Islamic issue. It is a power issue for the government of the day to show its ‘physical’ Islamic credentials and also for the Syariah Courts to quietly and using backdoor means to raise its status to a level higher than what is provided for in the Federal Constitution.
Mitigation?
In the Procedure Act, there are a number of sections which allow the Court to use discretion to reduce the sentence meted out by taking into account personal factors of the accused. It allows the Court to mitigate the sentence impose on the accused.
Its useful to repeat that, from the media reports, the 3 women were not repeat offenders, they surrendered voluntarily and were not arrested and they have repented. Section 129 of the Procedure Act states,
129. First offenders.
(1) When any person not being a youthful offender has been convicted of any offence punishable with imprisonment before any Court, if it appears to such Court that regard being had to the character, antecedents, age, health or mental condition of the offender or to the trivial nature of the offence or to any extenuating circumstances under which the offence was committed it is expedient that the offender be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond with sureties and during such period as the Court may direct to appear and receive judgment if and when called upon and in the meantime be of good behaviour.
For the 17 year old woman, section 128 of the Procedure Act provides,
128. Youthful offenders.
(1) When any youthful offender is convicted before any Court of any offence punishable by fine or imprisonment, such Court shall instead of awarding any term of imprisonment in default of payment of the fine or passing a sentence of imprisonment-
(a) order such offender to be discharged after due admonition if the Court shall think fit; or
(b) order such offender to be delivered to his parent or to his guardian or nearest adult relative or to such other person, as the Court shall designate, on such parent, guardian, relative or other person executing a bond with a surety, as the Court may require, that he will be responsible for the good behaviour of the offender for any period not exceeding twelve months or. without requiring any person to enter into any bond, make an order in respect of such offender ordering him to be of good behaviour for any period not exceeding two years and containing any directions to such offender in the nature of the condition referred to in paragraphs 130(a), (b) and (c) which the Court shall think fit to give”.
It is clear from the Procedure Act that there are sections which empower the Judge to reduce the sentence meted out. The question is that why impose such a heavy penalty? The sections above also demonstrates that the argument that the caning is to be considered as an ‘education’ rather than punishment also does not hold water especially in view of the fact that whipping is considered as a punishment heavier than imprisonment. Here, the 3 women were sentenced to caning AND imprisonment!
The manner in which the punishment was carried out and the eventual disclosure to the Malaysian public raises suspicion. There are many unanswered questions with no answers. Are these 3 women collateral damage in order for certain organisations to flex its muscles or for the government to demonstrate its physical ‘Islamic’ credentials? Why do we not hear of heavy punishment being meted out to errant husbands who desert their wives or fail to pay maintenance? The imbalance in handing out sentences for offences under the Syariah enactments does not help to counter the negative perception toward the Syariah institutions in Malaysia.
However, unfortunately, they also do not like to be criticized. Every criticism or question posed is usually met with ‘labelling’, the usual would be, ‘anti-Islam’, ‘liberal Islam’ and many others. The other common retort would be that the critic does not understand the intricacies of Islam and the worse would be that the critic is questioning God’s law which is the syariah (despite the fact that the enactments were drafted by draftsmen based on their interpretation of Islamic laws).
It is frustrating that whilst they argue that those who oppose such punishment do not understand Islam, they do not take the steps to respond in an intellectual manner based on factual arguments. Until now, despite the screams and cries from various women organizations on the manner in which the Syariah Courts treats women, we have no real cogent and clear response to the same by organizations like JAKIM or the Syarie Lawyers Association. For example, lets look at the some sections from the Islamic Family Law (Federal Territories) Act 1984 [“Family Act”],
126. Desertion of wife.
Any person who, having been ordered by the Court to resume cohabitation with his wife, wilfully fails or neglects to comply with the order commits an offence and shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or with both such fine and imprisonment.
127. Ill-treatment of wife.
Any person who ill-treats his wife or cheats his wife of her property commits an offence and shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or with both such fine and imprisonment.
128. Failure to give proper justice to wife.
Any person who fails to give proper justice to his wife according to Hukum Syara' commits an offence and shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or with both such fine and imprisonment.
The sections above deal with mistreatment by the husband on the wife. It involves a wrong committed on third parties i.e. the wife and also the children from the marriage which may lead to negative social issues. However, such offences carry penalties which are far less harsh than personal moral crimes such as sex outside wedlock. Is this fairness? Is it not justified for women organisations to criticise the state of affairs when it seems biased in favour of the man? Perhaps, rather than embarking on sensationalist punishments, it would be better for the Islamic justice organisations to study the various other enactments to find ways to be more ‘fair’ and ‘just’?
What seems to be more and more apparent when the issue is analysed in greater depth is that it has again been carried out as a manoeuvre in the political chess game. It has nothing to do with the education of the ummah or to stem social ills. The 3 women are mere pawns in the game for political power in this country. The saddest part is that Islam has again been abused in the race for power and votes.
* This is a translated version of an earlier post in Bahasa Malaysia entitled "Isu Sebatan Wanita - Oslam atau Politik?" by Shaikh Saleem. This translated version is done by Shaikh himself.
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