Most feel caning too harsh for a first-time offender

(NST) WHILE caning as a punishment for offences under syariah is not new in Malaysia, the decision of the syariah court in Kuantan to impose this sentence on a woman has outraged many quarters.

 

The consensus is that Kartika Sari Sewi Shukarno, 32, a mother of two who was fined RM5,000 and ordered to be given six strokes of the rotan by the Kuantan Syariah Court after she confessed to drinking beer in a nightclub in Cherating on July 12, 2007, should be spared the cane.

Islamic criminal law expert Dr Siti Zubaidah Ismail, of University Malaya's Department of Syariah and Law agreed that the caning sentence was a bit harsh for a first-time offender.

She said although it was legally right for the syariah court judge to impose the maximum sentence, a lighter sentence could have been meted out had the judge taken into account several mitigating factors such as the fact that Kartika was a first time offender and had pleaded guilty to the offence.

"From my experience, in nearly all cases, the normal practice is for the judge to take into consideration all the facts and mitigating factors. The offenders will usually be fined. For instance, even if the maximum fine for a khalwat case is RM3,000, the judge will usually impose only a RM2,500 fine."

Her views were echoed by Assoc Prof Dr M. Azam M. Adil of UiTM's Centre for Islamic Thought and Understanding, who said that syariah court judges often used their discretion when passing sentence.

"In many cases, they either fine or impose a jail term on the offender. But if the case is very serious, they will probably consider imposing both penalties on the offender. But in practice, they usually impose a more lenient sentence. In this case, it was a harsh sentence."

He cited a similar case where the Negri Sembilan Syariah High Court sentenced a Muslim man to 30 days imprisonment for consuming alcohol in public.

He said since punishment for drinking is not mentioned in the Quran nor the Sunna, Muslim jurists are in dispute over whether the punishment is categorised under hudud or ta'zir (discretionary power of the judge) and whether it should be 40 or 80 strokes (of the cane).

"Due to the limitations of the powers of the syariah courts in Malaysia, the punishment for drinking is regarded as ta'zir."

He added that caning and the death penalty were forbidden against women from the Hanafi school of thought.

"In the case of apostasy for instance, the woman will be sentenced to jail and made to repent and if she does not she remains there until she dies. If apostasy is considered a serious offence and that is the punishment, why should consuming beer be punished with caning?"

On how the caning sentence could be carried out as the syariah court judgment does not come with a jail term, Siti Zubaidah said the syariah court could sentence Kartika to one day's jail specifically for the caning to be carried out.

However, she said, the caning sentence contravenes the Prison Regulations 2000 which states that female offenders cannot be caned.

"The Prison Regulations is a Federal legislation whereas the Syariah Criminal Procedure Act is a state statute. In principle, if the state law contravenes the Federal law, it cannot be executed so it becomes null and void."

However, she pointed out that the method of caning under the civil law differs from that under syariah law.

"Under the civil (law) method, the size of the cane is bigger and the impact is a full strike on the buttocks. But under syariah, the cane is much smaller and the warder cannot lift the rotan above the head, so the impact is not as hard.

"But there is room for debate on this if the case is taken up to the Higher Syariah Court on appeal. Then we can know whether the state law can prevail," Siti Zubaidah added.

Azam said as caning is a serious punishment under Islamic law, it is advisable for the judge to look for the lowest punishment, considering that the offender was a woman and it was her first offence.

"There are opinions by Muslim scholars such as Ahmad Fathi Bahnasi that the main idea of punishment is to ensure that the offender will not repeat the offence and to warn the public against committing such an offence. And the sentence must be fair, taking into account the degree of the offence.

"For certain offences, the offender can be sent to a rehabilitation centre for repentance and that is Islamic. Even Section 50 of the Wilayah Persekutuan Syariah Criminal Law provides this mechanism for up to six months, and if the offender is sent to jail, it should not exceed three years.

"In Kartika's case, why didn't the judge sentence her to three years imprisonment and fine her RM5,000, if he wanted a deterrent punishment?" he asked.

Siti Zubaidah said while Kartika herself appears satisfied with the punishment and has decided not to appeal against the sentence, other parties are concerned whether this case would set a precedent.

"But the issue is that the sentence imposed is a maximum sentence, which I think is a bit too harsh for a first time offender. Unfortunately, because she is not appealing to a higher authority like the Higher Syariah Court, we will not know if the written grounds for judgment by the trial judge can justify the punishment meted out."