Is whipping the answer?

By Shahanaaz Habib (The Star)

Malaysians were shocked when a woman was sentenced by the Pahang Syariah Court to six lashes of the rotan for drinking alcohol. They were again shocked when she decided not to appeal.

THERE is still time for Kartika Sari Dewi Shukarno to reconsider and appeal, said her lawyer Mohd Zuki Che Muhamad Ghani.

“I told her to go and discuss it with her family,” he said, commenting on his client’s shocking decision not to appeal against her sentence.

He said Kartika, 32, had 14 days to appeal (from July 20, the date of the sentencing) and so he did not want to record her refusal to appeal as yet because she might change her mind by Aug 3.

Zuki explained that Kartika had not wanted to appeal because the process would take a year or two to be heard. She felt it was too long and as she had already pleaded guilty she was afraid she would be sent to jail instead.

“The offenders plead guilty first and it is only just before the sentencing that they look for a lawyer,” he said, which was the case with Kartika.

Last week, Kartika who has two children was sentenced to RM5,000 and six strokes of the rotan for drinking beer at the Legend Hotel lounge in Cherating.

Although she is the second woman to receive the caning sentence (the first was waitress Noorazah Baharuddin), by choosing not to appeal, Kartika looks set to be the first woman in the country to be whipped.

Syariah Judge Abdul Rahman Yunus dealt Kartika the maximum sentence, saying he wanted it to be a deterrent.

This is not the first time this judge has come down hard on drinking.

In 2005, he passed the very same sentence (RM5,000 and six lashes) on two brothers, Mohd Nizam Ibrahim and Mohd Nasha, for drinking stout in public. Earlier this year, he sentenced Mohamad Nasir Mohamad and another woman, Noorazah Baharuddin, to six lashes and a fine also for drinking.

But they all appealed and their cases are still pending in court.

Kartika was calm when the court decision was read out and initially said she would appeal. She later changed her mind, saying she has repented and is prepared to be caned. And she wants it to be done as soon as possible so that she can move on.

Some praised her decision saying she was brave while others are outraged, fearing it could set a precedent where the Syariah courts would now not think twice about sentencing other women to whipping for similar offences.

Pahang, Perlis and Kelantan are three states in the country in which Syariah law provides for women to be caned for criminal offences.

Under the Syariah, drinking for Muslims is classified as a criminal offence.

Syariah lawyer Sa’adiah Din was surprised by the Pahang Syariah court’s decision.

While caning is allowed under the state Syariah law and there are details on the type of rotan (thin), and manner of whipping (moderate strength) to minimise injury, “that doesn’t mean I’m comfortable with it,” she said.

She questioned why Kartika, a first time offender, was served the maximum sentence.

“I also ask ‘why now’. We never had it before even though the law has been there for a long time. If it is supposed to teach the public a lesson, why pick on the weaker sex?

“Drinking alcohol is wrong in Islam but it is a personal offence. It is not like an offence against the state or others, like stealing or snatching someone’s bag.

“So I would prefer for those who drink to plead their case before Allah on the Day of Judgement (rather than be caned on earth for the offence). They will have to answer to Allah,” she said.

Dr Chandra Muzaffar, president of the International Movement for a Just World, revealed a poignant point when he said the Quran does not state a punishment for consuming alcohol.

“It is regarded as wrong but the Quran does not provide a mode of punishment. Compare this to other wrongs like stealing: the mode of punishment for that is prescribed in the Quran,” he said, adding that punishment for drinking came about only after the Prophet’s time with the evolution of fiqh (Islamic jurisprudence).

Different views

Malaysia Syarie Lawyers Association president Mohamad Isa Abd Ralip agrees with the sentencing and stresses that the rationale is to didik (educate) so that people will stay away from alcohol.

Jail sentences, fines and whipping are all part and parcel of Syariah law, he said, and it is up to the judge to chose.

“It’s just that the judge rarely orders a caning but it is within his right to do so and we have to respect the decision.”

Dr Chandra, however, feels that corporal punishment should not be inflicted on a man or woman for drinking.

“Consuming alcohol is wrong but the authorities should try some other approach like advising or counselling the person. Nasihat (counsel) is emphasised in the Quran,” he said.

Dr Chandra said he felt sorry for Kartika and her acceptance of the court’s decision “blindly with an uncritical attitude”.

“The poor girl. It’s a pity too that her decision (not to appeal) is being commended by some religious individuals like Datuk Nik Aziz (Nik Mat).”

He attributed Kartika’s “blind acceptance” of the court decision to a number of factors, among them a lack of knowledge of the Quran, lack of understanding of the religion and what she has been taught by those around her.

“This is part of the whole Islamic education system here where individuals are not challenged to reflect or think upon religion, laws and practices when Islam does actually encourage reflection and thinking,” he said.

For Dr Chandra, it is important to ask questions. “You have to ask ‘Is it (caning for drinking) in the Quran? Is it the right approach? Does whipping help as a deterrent? Once you use the blind unthinking approach, then all these questions won’t be asked.”

Jemaah Islah Malaysia’s president Zaid Kamaruddin said that while caning is in the statutes and it is up to the judge to choose, “I would be happier if the judge chooses some other form of punishment other than caning.”

In the civil court, the rotan used is long and thick and inflicted on bare skin. On impact, it breaks the skin and leaves lasting scars. In comparison, the syariah cane is rather thin –1.22m long and 1.25cm thick.

It should be a straight piece with no grooves, segments or joints. The whipping should be done with average force without lifting the hand over the head and the person whipped should be fully dressed in accordance with Islam.

“Clearly, the rotan and whipping in Islam is very different. Male offenders stand while being whipped and females sit, which means the women kena sikit only.

“The way I look at it, it is almost like your mother pukul (beating) you. The spirit of the sentence is to teach and not to leave a mark,” explained Sa’adiah.

Even so, argued Dr Chandra, there should not be too much emphasis on the type of cane or manner of whipping that it distracts from the real issue, which is the type of punishment being meted out instead of advice and counselling.

Sisters in Islam also condemned the whipping sentence for women, describing it as a violation of human rights principles and the right to be “free from cruel, inhuman, degrading treatment or punishment”.

SIS executive director Dr Hamidah Marican said the whipping is not proportional to the gravity of the offence and that research has shown it is not an effective deterrent.

Also commenting on the issue, lawyer Haris Ibrahim said there is growing encroachment in people’s lives and this is encouraged by silence – people’s unwillingness to speak up.

The compassionate side of Islam is not being seen, he said, citing cases like the dumping of babies which invariably leads back to young unwed Malay girls being so afraid of being hauled up to the Syariah court that they try to conceal their shame by dumping their newborn.

New trend

Sa’adiah has also noticed that of late there has been a trend towards harsher penalties meted out by the Syariah court.

In the past, those caught for khalwat (close proximity) were fined but since May some have been sent to prison.

“Even first offenders pun kena. No doubt all these are provided for under the Act but to go for maximum sentencing?” she queried, citing the case of a young college boy who was sentenced to seven days’ jail for khalwat and fined RM3,000.

There is no Syariah prison so the boy would have to serve the sentence in a normal prison.

“He would also have a prison record. It would be hard when he gets out of college and wants to apply for a job. Someone like that could go into prison a good person and come out bad (because of the experience),” she said.

Dr Chandra said all these only go to show the way in which Islamic jurisprudence has evolved to be so powerful and dominant in Muslim societies everywhere.

He said a notion like an Islamic state invariably means imposing laws like this or hudud style punishment and “this is something one should be conscious of.”

This is made worse by the fact that Malaysia does not have a strong intellectual tradition, debates or discussions on fiqh, so “no reform trend” within Islam would emerge here.

Women, Family and Community Development Minister Datuk Seri Shahrizat Abdul Jalil and PAS’ Dr Lo Lo Mohd Ghazali spoke up against the sentence saying they were shocked by it and promptly got flak from some groups for criticising the Syariah judge’s decision.

This forced Dr Lo Lo to make a U-turn a day or two later.

She said she now agreed with Kartika being whipped.

She said under hudud law the punishment for drinking alcohol is 40 to 80 lashes of the rotan so Kartika’s sentence was close to the hudud law.

“When the Syariah court passed the sentence I was shocked not because of the decision but by the boldness of the judge. I congratulate him for it.”

She omitted the fact that the punishment for drinking alcohol is not mentioned at all in the Quran.