Loyal Followers

Friday, August 28, 2009

The Legality of Caning Kartika - a correction

A very kind and polite reader of my article, "The Legality of Caning Kartika" posted a comment which I would like to reproduce in verbatim below:

Quote:

Syariah law does provide the procedure for caning - Mohd Hafiz Hassan (Taken from The Malaysian Insider)
AUG 27 – I agree with Dina Zaman (“Kartika’s legacy to Malaysia”) that there is a marked difference between caning under Syariah law and our Civil law.
I also agree with the statement attributed to Azhar Harun (aka the columnist-blogger Art Harun) that under “civil law, women cannot be subjected caning as a punishment for any offence.” Section 289 of the Criminal Procedure Code (CPC) expressly provides that no female shall be punishable with whipping.
However, I beg to differ that there is no procedural guideline as to how caning is to be carried out under Syariah law. On the contrary law, Syariah law in Malaysia makes provision for the carrying out of the sentence of whipping.
The law is to be found in the state enactments on Syariah Criminal Procedure.
I shall refer to section 125 of the Syariah Criminal Procedure (Federal Territories) Act 1997. Similar provisions are to be found in the state enactments.
Subsection 2 provides that the whipping rod, excluding its holder, shall be of the same type and made either from rattan or small branch of a tree without segment or joint and its length not more than 1.22 metres and its thickness not more than 1.25 centimetres.
On the carrying out of the sentence, subsection 3 makes it mandatory that:
(a) before execution of the sentence, the offender shall be examined by a Government Medical Officer to certify that the offender is in a fit state of health to undergo the sentence;
(b) if the offender is pregnant, the execution shall be postponed until the end of two months after delivery or miscarriage, as the case may be;
(c) the sentence shall be executed before a Government Medical Officer in such place as the Court may direct or in a place fixed by the Government for the purpose;
(d) the person appointed to execute the sentence shall be an “adil” and mature person;
(e) the person shall use the whipping rod with average force without lifting his hand over his head so that the offender’s skin is not cut;
(f) after inflicting a stroke, he shall lift the rod upward and not pull it;
(g) whipping may be inflicted on all parts of the body except the face, head, stomach, chest or private parts;
(h) the offender shall wear clothes according to Hukum Syarak;
(i) if the offender is a male, the whipping shall be inflicted in a standing position, and if a female, a sitting position;
(j) during the execution of the whipping the Government Medical Officer certifies that the offender can no longer receive the strokes, the whipping shell be postponed until the Medical Officer certifies that the offender is fit to undergo the balance of the sentence.
So, it is erroneous to say that “when Kartika was sentenced to be caned, she had to be caned in accordance with our civil law.”
On another issue of controversy, that is, the so-called remand order for a week in prison to facilitate the caning, I refer to subsection 4 of the same provision.
It provides that in the case where the offender is sentenced to whipping only, then he shall be dealt with as if he is sentenced to imprisonment until the sentence is executed.
It appears therefore that the warrant to detain Kartika, which the state Syariah prosecutors have clarified to be the nature of the order, is lawful.
Be that as it may, the legality of the whipping sentence on Kartika perhaps lies in its inconsistency with section 289 of the CPC. This provision is not only “civil’ law but a federal law.
On the other hand, the law under which Kartika was convicted and sentenced is state law.
Article 75 of the Federal Constitution provides that if any state law is inconsistent with a federal law, the federal law shall prevail and the state law shall, to the extent of the inconsistency, be void.
It is arguable, therefore, that a sentence passed under a state law cannot be inconsistent with provisions of a federal law.
* Mohamad Hafiz Hassan is a reader of The Malaysian Insider.

End quote.

I did further research and it would appear that he was right and I was wrong on the fact that Syariah law in Pahang does in fact provide for the procedure on how the caning is to be carried out. It is contained in section 125 of the Enakmen Tatacara Jenayah Syariah 2002 .

I must admit that I totally missed out the said enactment while doing my research. I apologise for the mistake.

Thank you for the kind reader who posted the comment and to Encik Mohamad Hafiz Hassan who had kindly pointed that out on the Malaysian Insider.

9 comments:

donplaypuks® said...

Doesn't matter what you missed out Bro!

This shoddy piece of legislation whereby first time offenders are no given a second chance, is inconsistnt in punishment meted out for lesser and greater offences and where women are whipped, MUST BE THROWN OUT!!

Raison D'etre said...

My wonder is why those in charge of the case itself did not highlight such enactment as to put to rest any controversies arising from it.

Why put the whole Shariah system under dispute when there are clear rules within it already?

Tak buat kerja? Buat kerja suka -suka?

No press savvy?

All it takes is a statement.

What: Tiada bagi arahan?

Anonymous said...

Don't worry man , we are learning new things everyday..as they say :-
"to err is human , to forgive divine".

Cheers

Anonymous said...

Why is it an offence to take alcohol in public but not in private ???

Antares said...

I watched with profound revulsion on Mkini.tv as the president of the Syariah Lawyers Association warned non-Muslims against commenting or interfering with the Kartika caning case. That creepy fellow named Isa Ralip gave me the shivers - what instantly came to mind was the nightmare sequence in Terry Gilliam's Brazil when Jonathan Pryce is lobotomized by a team of brain surgeons all wearing babyface masks.

natives are restless said...

The verdict was guilty as charged .
The sentence was passed with a fine & whipping whether deferred or not .

Syariah Justice had been served .

And YES , Malaysia had obtained the Ultra Islamic Country status in the eyes of the world.

Old Fart said...

The law might be there. No argument.

However, was there intention that the sentence be carried out?

Somehow, I don't think so.

The script as "written" might have provided for the guilty to move on to pleading leniency by making an appeal. From there then mercy shall be showerd upon her.

Even the PM wants her to appeal. Sharizat wants her to appeal. Everyone wants her to appeal.

Why?

What makes them so sure that the appeal shall be a mere formality and that she will be spared the caning? If it is such a sure thing, give mercy, especially Islamic mercy more meaningful. give it without first requiring her to appeal.

Isn't it enough that she plead guilty without even fighting the case? Isn't it enough that she paid the fine and at no time has she tried to lessen the the degree of the "crime"?

What is the appeal supposed to represent beyond meeting procedural requirements? It sure to me is a self recriminating humiliation of one's dignity? One's sense of self respect.

Kartika, by her refusal to seek any mitigation through an appeal, knows what she is talking about. You can cane her to feel that sense of power. However, this woman has a sense of dignity and self respect that will forever be outside the comprehension of our Islamic legal fraternity. That is not going to be diminished by any caning or public humiliation.

The reluctance to institute the punishment given is evident. they have got the grace period of the Ramadan season. Then what? Hope like hell that she will appeal and all this will go away?

The authorities would have saved face. But she? She would have lost it all. Most important of which is her sense of self respect and dignity. Caning her, she maintains her self-respect and dignity. The authorities lose everything, including the dignity of the country.

Anonymous said...

Syariah law is made by God who MUST be obeyed & respected , ok !
we MUST step on the xxx head to defend our religion , ok !!

swicket said...

Old Fart, reluctance is not the reason why Kartika has not been caned. The State guys wants to carry it out but is being pressured by the Federal guys (u the ppl i'm referring to).
The Federal guys doesnt want it to be carried out but doesnt want to 'instruct' the State guys to repeal the punishment either, as not only will it appear that they are meddling, it will also discredit the State law i.e it's meaningless. What's the point of having it if someone can just come round and dictate something that has already been decided.
All the Federal guys care about is how Malaysia appears in the eyes of the world, hence all the clamor in asking her to appeal.
She's not appealing the judgment cos she knows she committed an offense, not cos of the BS u mentioned about 'losing face' etc. If u're a Muslim & u drink alcohol, u already 'lost face'!
Muslims musnt drink. Period. No two ways about it.
Malaysia needs to do one thing: Let the civil law takes care of the non-Muslims & the Syariah law, the Muslims. The non-Muslims wont be worried cos Syariah is not applicable to them & the Muslims can rest easy knowing that they are protected by the law that was sent down by their maker. I mean, if u proclaim urself to be of a certain faith, then observe its dos & donts i.e Hindus x bole makan lembu, Muslims x bole minum arak.Abis cerita.