Digging...and digging...and digging
THE big hole our government found themselves in after Kartika Sari Dewi Shukarno was sentenced to caning for drinking alcohol has just gotten bigger. Stuck between pleasing those who thought moral offenders deserved caning and outraged human rights groups as well as the international community, the government decided to cane three other Muslim women instead.
The government's face-saving ploy is almost transparent — cane these women quietly then demonstrate how humanely it was done, thereby making their problems go away. Deputy Prime Minister Tan Sri Muhyiddin Yassin reportedly described the caning as "mild". Once everyone sees how wonderfully civilised we are, Kartika can then be caned without much ado. The government has also educated the public on what an effective deterrent caning is against moral offences. Problem solved, right?
Wrong. Seriously, whom is the government trying to kid here? What has the Barisan Nasional (BN) government actually been doing? It is politicising Islam for its own survival, and the caning of the three women is just the latest addition to this trail of expediency.
No kidding
Prior to 9 Feb 2010, Malaysia had never caned a woman for any crime, be it murder or kidnapping or armed robbery, whether under syariah law or otherwise. In fact, before Kartika's sentence, many assumed that caning only applied to men as Section 289 of the Criminal Procedure Code expressly excludes women from caning. Kartika's case also caused a further problem as caning procedures only apply with a jail sentence, and she had not been sentenced to imprisonment for consuming alcohol. This led to a botched attempt by the syariah judge to impose a seven day imprisonment, after the case had been concluded and his sentence passed.
So amidst all the fanfare about the joys and wonders of caning, the government has failed to answer this question: Regardless of how it's being carried out, why are we caning women now, after surviving 52 years as a nation without doing so? What's different? Are these caning sentences exceptions to the general rule? If so, then why don't we review the laws and abolish caning?
Tunku Abdul Rahman
(public domain | Wiki Commons)
Do these punishments and government statements signal a greater focus on Muslims' moral misdeeds? How will the government ensure moral policing and punishments are applied fairly? After all, wasn't it our first Prime Minister Tunku Abdul Rahman who made a tongue-in-cheek comment in response to PAS that if all adulterers in the country were to be stoned, "there wouldn't be enough stones in Malaysia for the task?"
Disproportionate sentence
Rather than answering these difficult questions, our government has once again opted for the course of action calculated to garner maximum votes for minimum risk. Judging from their recent actions, Umno-led BN seems to be playing to a gallery it assumes agrees with women being caned for breaches of personal morality. By doing so, it is choosing to ignore or discredit those who oppose the caning. At the same time, it is wary of further ruining Malaysia's already tattered image as a moderate Muslim nation, hence the "caning is mild" rhetoric.
It would have been nice if our government could have demonstrated leadership, for a change. Instead of performing a song and dance about the glories of whipping, why couldn't it have taken a principled stand against it? International standards aside, the least the government could have said was that the punishments in these cases did not fit the "crimes".
Emeritus professor and constitutional expert Datuk Dr Shad Saleem Faruqi told The Nut Graph in a phone interview that the whipping in these cases could be challenged for disproportionality: "In Islam, the punishment must be proportionate to the crime. What is proportionate must be judged in the context of society. In Malaysian society, I think the idea of punishing [such offences] with whipping surely is out of tune with the general perception. After all, we didn't do it for 50 years."
Shad Saleem also said those who disagreed with the punishment for moral offences had a right to speak up. "In a theocratic system, the mandatory, religiously prescribed punishments have to be enforced if all the conditions for their enforcement are satisfied to the hilt.
"[However, our] legal system [consists of] mostly human laws, made and enforced by extremely fallible human beings," he said.
Thus, he said citizens should therefore not be forbidden from examining the substantive justice of the laws and the proportionality and equal application of the sentences.
"If there was violence committed on others — rape, theft with violence; I can understand even the moral argument that what you do to others should be done to you. But in crimes of pure improprieties or sins which do not harm others, education and rehabilitation may be more appropriate."
The road less travelled
The cane is like a magic wand for creating repentant Muslim women?
Unfortunately for Malaysia, this is not how our government has chosen to respond. Its chosen course of action instead involved parading the three women before the media to talk about how they deserved their punishment and how repentant it made them.
In a country beset with politically created divisions and diversions, this is not the time for religious grandstanding by our elected representatives. This is the time for leadership and clear thinking about how we are to progress as a nation.
Whether or not Malaysian law allows women to be whipped, these facts are plain: International standards view whipping as torture and corporal punishment as degrading. Many countries are progressively reviewing their corporal punishment laws and removing them, recognising that such punishment is no longer acceptable in present-day society. We, however, seem to be going in the opposite direction.
How will we foster national unity when Malaysian Muslims can be imprisoned and caned for "crimes" which do not affect their fellow non-Muslim citizens? Will there ever come a time when non-Muslims would also be subjected to Islamic laws to counter allegations of religious discrimination?
Isn't it inconsistent for Muslim women to be caned under Islamic law, while the Criminal Procedure Code disallows it? Shouldn't all state law inconsistent with federal law be deemed void?
Should state resources be devoted to hunting down moral offenders at a time when violent crimes such as murder, rape and armed robbery have become rampant?
Malaysia is unlikely to review its whipping
laws in the near futureThese are all questions that our government has chosen not to answer. Instead, it has chosen to answer this question: "How can we the BN get out of this Kartika mess without appearing weak or unIslamic to our electoral base, while also not appearing cruel to our international trading partners?"
By answering this question the way they have done, our government has closed the door on the possibility of Malaysia reviewing its whipping laws in the near future. In being guided by political expediency rather than principle, it has ended up digging an even bigger hole for itself and all Malaysians.
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