By Shanon Shah
thenutgraph.com
PETALING JAYA, 18 Nov 2009: Kartika Sari Dewi Shukarno should already have been caned by now according to the law, the Kuantan syariah court and a syariah lawyer said.
"Initially there was this issue of syubahah (doubt) in the implementation of the sentence. But the prisons department has already assured us that it has syariah-compliant caners, even for women," Kuantan Syariah Court Registrar Muhammad Azhari Abd Rahman said.
He also confirmed over the phone with The Nut Graph that there were no legal impediments towards caning Kartika.
Kartika On 13 Nov 2009, Pahang religious affairs committee chairperson Datuk Mohamad Sahfri Ab Aziz said the caning sentence on Kartika had not been carried out yet because Malaysia was short of a female caner.
Syariah lawyer Saadiah Din also said that each state's Syariah Criminal Offences Enactment provides for caning, while the Syariah Criminal Procedure Enactment allows for caning of both men and women.
"The question is whether the provisions are applied or not," Saadiah said in a phone interview.
The issue of whether or not the state can cane a woman has been hotly debated in Kartika's case. According to Section 289 of the Criminal Procedure Code, women are exempted from the whipping sentence.
"But if you look at the Syariah Criminal Procedure Enactment, there is nothing exempting women from being caned under syariah law," Saadiah said. In fact, Section 125 of the Enactment clearly stipulates how men and women should be caned.
"It is my opinion that if the law exists, it is there for the courts to use. So, if anyone wants to challenge or oppose the decision on Kartika, they would need to challenge the law itself," Saadiah said.
Victimised by system
Saadiah said, however, she felt that Kartika had been victimised by the system.
"Why are they taking so long to cane her? The delay is actually compounding her punishment in a way. Why the delay? She actually saved the court's time by pleading guilty in the first place," Saadiah said.
"I am also very disappointed that the court has expressed no remorse over [the delay], whether via the registrar or any of the religious department officials," she said.
In another case, Azhari confirmed with The Nut Graph that the Penor prison has already caned Indonesian national Nasarudin Kamaruddin, 46, on 12 Nov for drinking alcohol.
In September 2009, Nasarudin was sentenced by the Kuantan Syariah High Court to one year in jail and six strokes of the cane for drinking samsu on 27 Aug. He is now serving the remainder of his jail term at Penor prison.
(Pic by engindeniz / sxc.hu) Apart from Nasarudin and Kartika, four other Muslims have been sentenced by the Kuantan Syariah High Court for the offence of drinking alcohol.
In 2005, the brothers Mohd Nizam Ibrahim and Mohd Nasha were sentenced to a RM5,000 fine and six cane lashes for drinking stout in public. Earlier in 2009, Mohamad Nasir Mohamad and another woman, Noorazah Baharuddin, were also sentenced to six lashes and a fine.
However, unlike Kartika and Nasarudin, the four have appealed their sentences and are waiting for their appeals to be heard.
Nasarudin's case
When asked why Nasarudin was sentenced to caning and a jail term, while the rest were sentenced to caning and a fine, Azahari said it could be because Nasarudin, as an Indonesian national, was a flight risk.
Azahari also confirmed that Nasarudin did not have legal representation during his trial, but pleaded guilty.
Saadiah said this did not make sense. "There cannot be different decisions [regarding punishment] for the same crime in the syariah court. And after spending more than 30 years in Malaysia, where is this man going to escape to?" she said.
Saadiah also questioned why Nasarudin did not have any legal representation.
"It is an issue of access to justice. No matter who you are, you should have a lawyer in court, and if you can't appoint a lawyer, the court should help appoint one for you," she said.
"This is crucial especially in efforts to mitigate the sentence. The Kuala Lumpur Legal Aid Center has seen that sentences are indeed reduced when mitigation is done," she noted.
She added that one year in jail was harsh for a first-time offender.
On another issue, Saadiah said the sentences in Pahang did not set a binding precedent for other similar cases.
"In the syariah court, there is no maxim of binding precedent, unlike in the civil courts, where the lower courts have to follow decisions given by higher courts in similar cases. In the syariah system [in Malaysia], judges have their own ijtihad and inherent jurisdiction, so long as it does not go against hukum syarak," she said.
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