The Legality of Caning Kartika

Art Harun

When Minister Hishamuddin said that we are not experienced in this matter, he was stating the obvious. Firstly, no person of the female gender has been caned or sentenced to caning in Malaysia before.

The reason for this will be obvious later in this article. Secondly, the authorities entrusted with carrying out the sentence of caning in Malaysia had never ever caned someone convicted of the Syariah offence of consuming alcohol in public. Questions then arise as to how, where and by whom should Kartika be caned.

While I do not wish to be embroiled in the debate on whether Islam actually prohibits the consumption of alcohol and prescribes a punishment for it, I wish to state that such issue is not as clear as it is thought to be. There is however a decision from the Pakistan Federal Syariah Court which held that there is no clear prohibition against consumption of alcohol in the Quran and that flogging for such offence is thus unIslamic. I am citing this decision not so much to support any argument on whether the prohibition exists or otherwise as much as to highlight that this issue is far from being clear.

Muslims around the world – and Malaysian Muslims aren't exempted – have lamented that Islam has been misunderstood by non-Muslims, especially in the west. Islam has been cast as a religion which propagates disharmony; as a religion which sanctions the killing and murder of the innocent, women and children; a religion which is backward, primitive, unfair and unjust.

However, to a large extent, we, the Muslims, have ourselves to blame. A case in point is the provisions of the Enakmen Pentadbiran Ugama Islam dan Adat Resam Melayu Pahang 1982. Under this enactment, a Muslim who is guilty of consuming alcohol in public may be fined RM5000 or imprisoned for 3 years or both and caned of not more than 6 lashes. Kartika was convicted and sentenced under this enactment.

My learned friend, Shaikh Abdul Saleem, in his excellent article "Soalan Kepada PGSM" , has pointed out the whole reason why Islam has been ridiculed by the west for so long. He draws comparison to the provisions of the Enakmen Undang-Undang Keluarga Islam 2005 (Pahang). Under this enactment: