UPDATE: Malaysia: Caning sentence of Kartika upheld
Sister in Islam's (SIS) application for Revision on Kartika Sari Dewi Shukarno's case was turned down by the Assistant Registrar of the Kuantan Syariah High Court on 2 October. This unprecedented action from the office of the Registrar is a clear violation of the court process as all applications filed and duly paid must be accepted and heard. The Registrar or any court officer has no right to filter any applications. The Courts duty is to accept such applications and then it is for the Judiciary to hear all cases. This sentence has been upheld in spite of clear statements from government authorities casting serious doubt upon the wisdom of such punishments. WLUML and SKSW support the Malaysian Bar Council's call for Zero tolerance for caning as a cruel, inhuman and degrading punishment.
We are concerned that this is setting a serious and dangerous precedent in Malaysia. SIS and other members of the Joint Action Group for Gender Equality (JAG) also held a press conference on 30 September expressing concern when the media reported that the Pahang Syariah Chief Judge had reviewed the revision that was filed by himself earlier. The media reported that the revision was heard in a departmental meeting between the Pahang Religious Department (JAIP) and the Pahang Syariah Chief Judge on 28 September and it was later announced that the whipping sentence for Kartika would proceed. Section 168 of the Pahang Syariah Criminal Procedure Enactment 2002 states that only the Syariah Court of Appeal has the power to review a Syariah High Court decision, not a departmental meeting. In their memo of 25 August 2009, The Joint Action Group for Gender Equality (JAG) set out compelling reasons why Kartika’s case should be reviewed - on syariah, constitutional and legal grounds, international human rights principles, and based on sentencing guidelines. They include:
(i) Qur’anic teachings emphasise repentance, forgiveness and personal transformation. Even the verses on punishment for theft (Surah Al-Maai’dah 5:38-39) and robbery (5:33-34), emphasise that an offender who repents after his crime and amends his conduct, is redeemed, as God is forgiving and merciful.
(ii) Kartika has repeatedly expressed remorse and repented for her action. She should be forgiven, instead of be given the maximum punishment.
(iii) There is no consensus in Malaysia on the range of crimes for which whipping is prescribed,. Only Pahang, Perlis and Kelantan provide whipping for alcohol consumption under their Syariah Criminal Offences Codes.
(iv) Under normal sentencing guidelines, Kartika should not have been given the maximum punishment as she had pleaded guilty, was a first time offender and has shown and continues to show remorse.
(v) The whipping sentence is also disproportionate to the gravity of the offence committed, especially since there was no violence involved in the commission of the offence.
(vi) When an accused pleads guilty, it is a mitigating factor. Therefore, the judge should have taken that into consideration in favour of the accused, and should not have meted out the maximum sentences in terms of the fine imposed and number of strokes for whipping.
Constitutional and Legal issues
(vii) Can the Kajang prison which is established under Federal law execute an order issued by the syariah court which is under state jurisdiction?
(viii) Can a Federal authority execute a sentence of whipping against a Muslim woman when the Prison Regulations 2000 forbids corporal punishment to be applied to a female prisoner (of any age), or a male prisoner who is more than 50-years-old?
(ix) Can the Pahang Syariah Court simply impose an additional sentence of imprisonment for seven days after the trial had ended and the case deemed closed, just for the punishment of whipping to be carried out?
(x) The victimisation of Kartika violates constitutional guarantees of equality and non-discrimination under Article 8(2) of the Federal Constitution. Under federal law, a woman cannot be whipped, but under syariah, she can. Daily, thousands of Muslims violate the syariah law which forbids alcohol consumption. And yet, Kartika is victimised with the maximum punishment to set an example to others.
(xi) Is it the duty of the state – in order to bring about a moral society – to turn all “sins” into “crimes against the state”? Or should this be private morality best left to the religious conscience of the individual, rather than be deemed public morality and turned into a matter of law? As practice shows, the enforcement of such moral policing laws has often led to controversies, abuses and public outcry. In the end the Federal Government intervenes and those arrested are released.
(xii) As a signatory to the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) since 1995, Malaysia is committed to uphold respect and equality for women. This commitment is complemented by Malaysia’s obligations under the Universal Periodic Review whereby Malaysia’s delegation had during the UPR process in February 2009 reaffirmed Malaysia’s “respect for human rights long established given the country’s character as a melting pot of various cultures, religions and ethnicities”.
(xiii) Malaysia is also committed to the 1988 ASEAN Declaration on the Advancement of Women, the 2004 ASEAN Declaration on the Elimination of Violence against Women and the 2005 Putrajaya Declaration and Programme of Action on the Advancement of Women in Member Countries of the Non-Aligned Movement.
In the long term, we urge the Government to conduct a comprehensive review of the Syariah Criminal Offences laws of this country, with a view to repeal such laws, thus enabling all Malaysians to be governed by a single Penal Code under federal administration.
In 2005, Sisters in Islam , a member of JAG submitted a memorandum to the Government to reiterate its call for the Syariah Criminal Offences laws to be repealed on the grounds that they have no basis in Islamic legal theory and practice; they conflict with the Federal Constitution and that they conflict or overlap with the Penal Code and other federal laws. SIS had commissioned two reviews by Professor Muhammad Hashim Kamali and Professor Shad Saleem Faruqi and these have been shared with the Government.
The Government must show the political will and courage to once and for all deal with the implications of such intrusive moral policing laws. The implementation of these laws continues to raise numerous profound and controversial issues at the Islamic, constitutional, and human rights levels. They also fail to reflect the changing realities of Malaysian life today. The continual public outrage over moral policing laws reflects the disconnect between state control of private lives and personal choices, and how Malaysians view their entitlements to these rights. This can no longer remain unresolved.
The legal system in Malaysia is complex because the Malaysian state has accepted many of the inconsistencies of British colonial rule. There is in effect a two-track system. Non-Muslims (Malaysian and otherwise) are subject only to secular law. But Muslims (both Malaysian and otherwise) are subject to both secular law and shariah law. So Muslim Malaysians are subject to two sets of laws. So while Kartika can be caned under the shariah law, Malaysia's penal code prohibits caning of women. But the shariah law in Malaysia is under the jurisdiction of 13 separate states with their own interpretations. Only three states in Malaysia — Pahang, Perlis and Kelantan — impose caning for drinking alcohol. In the other 10 states it is punishable by only a fine.
Kartika caned would set a precedent that could subject the hundreds of thousands of Muslim Indonesian women working in Malaysia to the same punishment, at least in the three states where this particular interpretation of shariah law is in force. There are also many Muslim Singaporean women living in and visiting Malaysia, all of whom could suddenly be subject to this same law.
It has been reported by human rights organisations, according to Amnesty International, that undocumented migrants considered "illegals' in Malaysia are being punished through caning, by virtue of the penalties under the Immigration Act, and are in fact the primary victims of corporal punishment. The World Refugee Survey in 2005 placed Malaysia as one of the worst offenders of refugee rights, documenting cruel and inhumane treatment in Malaysia's prisons and detention camps. Often the punishment of caning, although discretionary, is handed down, as a deterrent. There are sets of demands now being put forward to the Malaysian government to stop caning as a form of torture altogether and to repeal the two sets of justice system. In 2006, The Malaysian Bar at its AGM passed a resolution declaring that the corporal punishment of whipping is cruel, inhumane and degrading and called for its abolishment.
'It is time for Malaysia to subscribe to Article 5 of the Universal Declaration of Human Rights, that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” and reject corporal punishment altogether as a form of sentencing. We all have the ability to affect the consciousness of members of our family, community, nation and planet. The voices of those who support cruelty are loud, but the silent majority can make themselves heard.' (Renuka T. Balasubramaniam, member of the Human Rights Committee (HRC), Bar Council Malaysia)