Unjust and Hypocritical Malaysian Shari’a Court

All these would have remained hidden had it not been for Kartika. We owe her an immense debt of gratitude for exposing this flawed and misguided system. She has done her part, but I do not see the nation doing its share. Instead we are consumed with the minutiae of her caning and ignore the huge elephant in the room: a hypocritical and an unjust Shari’a that is ill suited for our needs.

THE CORRIDORS OF POWER

M. Bakri Musa

It took a diminutive but courageous 32-year-old nurse and mother to expose what has been obvious to many but conveniently ignored: a grossly unjust and frankly hypocritical Malaysian Shari’a court system.

Subjecting a first offender – and a young mother at that – to six lashes of whipping for drinking beer in public cannot be considered a “just” punishment. Bluntly put, it is barbaric. And if something is not just, it cannot be Islamic. It is that simple. I wonder if those advocates for caning could tell me under what of the 99 attributes of Allah would caning a young mother fall under. Certainly not Ar Rauf (The Compassionate) or Ar Raheem (The Most Merciful)!

A Profile In Courage

Kartika Sari Dewi Shukarno is truly a profile in courage, a genuine heroine. She did not seek out to be one; the circumstances could easily have tuned her into an angry rebel, or worse.

She succeeded by adhering to our traditional halus (soft) ways. She did not challenge the system; on the contrary she freely admitted to her error and accepted her fate, just like a good obedient Malay daughter was taught to be. She asked only that the whipping be done in public so others could learn from her mistake. How noble and touching!

By those seemingly meek actions she exposed the hypocrisy of the Islamic establishment, and did so far more effectively than all the shrill voices of those in Sisters-in-Islam and other vociferous advocates for reform. More significantly, her Gandhi-like passivity is now noticed by the world.

Thus far what seems to get whipped is the image of Malaysia as a modern tolerant Islamic country. Her submissiveness, reflecting her Islamic faith (Islam after all means ‘one who submits’), also rattled Prime Minister Najib and Women’s Minister Sharizat. It is hilarious if not pathetic to see them scurry for cover.

In urging Kartika to appeal despite having her appeal period lapse, both Najib and Sharizat must feel confident that the sentence would be reversed. What however, if it were sustained? Their utterances imply that they could influence if not control the Shari’a Appeals Court’s decision. That is a scary thought. It bears pointing out that Kartika was sentenced by a court in Pahang, Najib’s home state. Meanwhile Shahrizat is bewildered as to why Kartika refused to appeal. The poor Women’s Minister still has not figured it out.

Home Minister Hishammuddin too joined in with his share of idiocy. When Kartika presented herself to jail for the planned whipping, she was turned away as the prison, under Hishammuddin’s portfolio, was not prepared to carry out the sentence!

The idiocies did not stop there. The Chief Judge of Pahang’s Shari’a Court of Appeal ordered a deferment and review of the sentence “in the interest of justice.” Left unstated was under what statute his order was made. Then there was the Federal Attorney-General also intervening, obviously not realizing that Islam is strictly under state jurisdiction.

There are those who would like us to believe that the ‘Islamic’ version of whipping is not at all cruel. The association of Shari’a lawyers and an umbrella group of Muslim NGOs maintain that “caning, in the context of Muslim punishment, is for the purpose of education and is different from the penal nature of some provisions in the Common laws and the civil courts.” Let’s ‘educate’ them!

Presumably the ‘Islamic’ whipping is closer to the S&M variety. Kartika is assured that she would not be stripped but allowed to wear her baju kurong. How thoughtful! Perhaps they could supply her with a black leather one; she just might like the whipping.

The Perak mufti opined that Kartika should be grateful as she would receive only six instead of 80 lashes that the mufti himself would impose and, I presume, like to administer personally. Thanks to the mufti’s advice, Kartika has now accepted her fate with equanimity, if not his blessing.

In the ensuing furor, the sentence was deferred, “in the spirit of Ramadan!” The piety of these folks is truly touching. Presumably once Ramadan is over, and the furor subsided, the whipping could begin. What is obvious is that the deferment was a relief not for Kartika but the establishment, a chance for them to recover from their collective shame and stupidity.

Expansion of Shari'a

In the past, the Malaysian Shari’a was restricted to family laws with such mundane matters as inheritance, divorce, and adoption. As part of Mahathir’s move at “out Islaming” the opposition PAS, the Shari’a was granted greater jurisdictions such that today it is on par with the secular system, as well as extending into civil and criminal matters.

Malaysia prides itself in being the only nation with a unique dual-track justice system that coexists harmoniously. Both assertions are erroneous. Canada also has a dual judicial system, with Quebec following “civil law” based on the Napoleonic Code and the rest subscribing to common law of the English tradition. However, the Canadian Supreme Court has final authority over both.

As for the harmonious part, Malaysia has yet to resolve the often conflicting jurisdictions of the two systems. It is not at all clear whether the country’s Federal (Supreme) Court has jurisdiction over the Shari’a courts, which gives a special Malaysian meaning to the word “Supreme.” Many maintain that it does not, which makes a mockery of our constitution. This unresolved issue has consequences, often heart wrenching, as demonstrated in many recent well publicized cases.

As the Shari’a now also has criminal jurisdiction, Malaysians are inherently not treated equally under the law; their fate depends not on the crime but their faith. A non-Muslim man caught committing adultery faces only the wrath of his wife, and possibly her vicious divorce lawyer. A Muslim man however, could be whipped, the same ‘Islamic’ whipping that Kartika would face. Now imagine the complications if one partner is a Muslim and the other, non-Muslim.

There are other distressing inequities if not outright hypocrisy. While Kartika would be whipped for drinking beer in public, the Muslim directors of beer companies – the manufactures and pushers, in the language of the drug culture – are honored. I also do not see the Shari’a going after ministers and sultans running away from their gambling debts.

All these would have remained hidden had it not been for Kartika. We owe her an immense debt of gratitude for exposing this flawed and misguided system. She has done her part, but I do not see the nation doing its share. Instead we are consumed with the minutiae of her caning and ignore the huge elephant in the room: a hypocritical and an unjust Shari’a that is ill suited for our needs.

Muslims confuse the concept versus the content of Shari’a. The concept – Shari’a being a body of laws based on the Quran –is accepted by all. It is a matter of faith; no disagreement there. The contents however are the products of human interpretations. As such it suffers from all the imperfections inherent in such endeavors. It also results in the Shari’a of the Shiites being very different from that of the Sunnis, as well as variations within the Sunni Fighs.

The corollary is that the content of Shari’a can be debated. These discussions must necessarily involve all stakeholders, not just the scholars and ulamas, a point emphasized by Abdullahi An Naim in his book, The Future of Shari’a. He suggests that Muslims revisit the Shari’a using the same rigorous intellectual tools used by earlier luminaries while cognizant of today’s universally accepted norms of constitutionalism, gender equality, and human rights, among others.

If that is too ambitious, begin with a more modest one. Get rid of the unjust elements in our Shari’a, like whipping women, and the grossly “un-Islamic” elements in our secular laws, like jailing citizens without affording them due process.

That is the crux of the issue, not caning. Thanks to Kartika, she is forcing us to face this reality squarely. She gently stared at the system, and it blinked.