Whipping Kartika

By Deborah Loh
thenutgraph.com

THE Pahang Syariah High Court's sentencing of Kartika Sari Dewi Shukarno to whipping and a RM5,000 fine for drinking beer has thrown up all kinds of issues. As pointed out by the Joint Action Group for Gender Equality (JAG) in a 25 Aug 2009 memorandum to the prime minister, "the implementation of these [syariah] laws continues to raise numerous profound and controversial issues at the Islamic, constitutional, and human rights levels."

Indeed, JAG member Sisters in Islam (SIS) has since 2005 called on the government to repeal syariah criminal offences laws on the grounds that they have no basis in Islamic legal theory and practice, and are unconstitutional. Yet, groups such as the Syariah Lawyers' Association (PGSM) want more offences added to the list in state syariah enactments. PGSM deputy president Musa Awang tells The Nut Graph in an interview that penalties should be harsher and streamlined in all states.

Increasingly, what these opposing Muslim views demonstrate is this: there are different opinions in Islam about whether personal sins constitute a punishable crime. More importantly, the different penalties imposed in different states also reveal how arbitrary human agency is involved in drawing up syariah laws in the name of Islam.

(Source: bullwhip.biz) Who decides the punishment?

One dispute arising from the punishment of Kartika is whether the punishment is proportionate to the crime. Complicating matters further is the disparities between penalties for the same offence in different states. For example, the punishment for alcohol consumption in Pahang is harsher than it is in Selangor or Johor.

Musa says the disparities between different state syariah enactments cannot be helped because the federal constitution grants states the exclusive jurisdiction to manage Islamic affairs within their respective boundaries.

Also, none of the penalties in the states' syariah enactments are "hudud", which would require amendments to the federal constitution in order to implement. The punishments are all "tazir", crimes for which penalties are unspecified in the Quran and therefore set according to scholars' interpretation, as warnings.

In 1984, the Syariah Courts (Criminal Jurisdiction) Act was amended to set maximum sentencing for fines, jail and whipping at the 5-3-6 formula. Thus, state enactments cannot impose penalties beyond the maximum RM5,000 fine, and/or three years' jail, and six strokes as stipulated in the federal Act.

The amendment to the mother Act was followed by increased penalties under the state enactments. In Pahang's case, the penalty for alcohol consumption prior to 1984 was a fine of not more than RM100 or not more than 15 days' jail. The state enactment was amended in 1987 according to the maximum penalty in the federal Act. The Syariah High Court judge in sentencing Kartika Sari Dewi followed this to the letter.

However, not all states follow the maximum penalty allowed. The Selangor, Perak, Negeri Sembilan, Penang, and Johor syariah enactments each stipulate a fine of not more than RM3,000 or imprisonment for not more than two years, or both. None of them stipulate whipping for alcohol consumption.

Musa Musa says these differences cause confusion among Muslims. Hence, his call for penalties to be streamlined in all state syariah enactments. "People will question why there are differences considering that the laws originated from the text and the Prophet," Musa argues.

However, other Muslim scholars have pointed out that the Quran is actually silent on the punishment for personal sins such as consuming alcohol. "Neither the Quran nor the Hadith invokes a penalty for alcohol consumption. The sin of consuming alcohol is described in the Quran in the mildest language of prohibition," notes Imam Feisal Abdul Rauf in a commentary in The Star.

What's just punishment?

Disparities also cause some crimes to appear arbitrarily worse than others, calling into question personal judgment values between the types of offences.

Under Pahang syariah law, for example, a man who abuses his wife faces a maximum fine of RM1,000 and/or imprisonment of not more than six months. If he pimps his wife and lives off her earnings, the maximum fine is RM4,000 and/or a jail term not exceeding two years, and whipping. Yet, the penalty for drinking alcohol is stiffer than crimes against one's wife.

In Perlis, however, drinking alcohol is as bad as pimping one's wife. The sentencing for both crimes is the maximum penalty based on the 5-3-6 formula. Pimping in Selangor also faces the maximum penalty provided under the federal Act and is stiffer compared to the penalty for alcohol consumption.

But Musa argues that more bite should be given to syariah laws through harsher punishments so these can deter Muslims from committing sin.

He says PGSM has appealed several times to the government to streamline and increase syariah penalties. "A RM5,000 fine is not a lot these days. You can raise the money with one phone call to a friend. Fines for syariah offences should be similar to the Penal Code, like RM10,000 and with increased jail terms. If these deterrents are stiffer, then maybe there won't be a need for whipping which may seem too 'fundamentalist' in this day and age," he argues.

But whether harsher penalties work is really questionable. Whipping and corporal punishment, for example, have been shown to be ineffective deterrents even to violent crimes. SIS has also noted that even among Muslim scholars, there is no consensus on what offences should be punished with whipping.

Imam Feisal Additionally, religious leaders like Imam Feisal have said in a previous interview with The Nut Graph that certain crimes committed against God and that do not hurt other people are not for "wordly courts" to punish. Some of these personal sins include eating pork and consuming alcohol, for which punishments are not specified in the Quran, Feisal notes.

Private vs public

Muslim Professionals Forum chairperson Dr Mazeni Alwi agrees that moral sins, which bring spiritual harm to oneself, should be handled differently from legal offences, or crimes that harm others.

"Drinking in public is a legal offence, but the law does not touch on drinking alone in private. It is not a crime, even if it may be a moral sin. Not everything that is sinful should be made into law," he says in a phone interview.

Still, Mazeni believes the law is necessary in order to create awareness about wrongs and to bring about repentance. He says having laws will also ensure that different views between Muslims do not cause offence. "One Muslim may feel there is nothing wrong with drinking in public but the law is there to prevent him [or her] from offending other Muslims who want to observe it."

But independent researcher Rosey Wang Ma believes that self-regulation is the best way rather than having more and more laws. "More laws and stiffer laws will only make people go into hiding," says the social anthropologist on Chinese Muslim history.

Musa disagrees, though, that it can all be left to self-regulation. "If you can hold your drink and control yourself, then ok. But can you? And even if you drink alone in private, but after that you drive your car and hit someone, you cause harm to other people. So the law is there for those who cannot regulate themselves."

Extending syariah

(Pic by engindeniz / sxc.hu)In 2008, at a seminar on syariah law review, it was proposed that non-Muslims caught in khalwat with a Muslim should also be punished by the civil court. More recently, a suggestion was made by Selangor PAS to ban the sale of beer in Muslim-majority areas, regardless of non-Muslims who may be living in the same locality.

These proposals for greater moral policing, based on a particular interpretation of Islam or moral code, that affect all Malaysians — Muslims and non-Muslims — are not recent. A civil society compilation of events beginning from the mid-1990s show how the arbitrary application of laws has violated citizen's rights, regardless of faith.

With so much at stake, Kartika's punishment of whipping isn't just about one Muslim woman who was caught breaking syariah laws. Her case is really about where Malaysia is heading, and whether we will be able to uphold not just our constitutional rights, but also an Islam that is rational, just and compassionate.