A reader has pointed out my mistake in this article. I admit the mistake. Please read The Legality of Caning Kartika - a correction.
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:
- someone who treats his wife badly and cheats her of her property is liable to be fined RM1000 or imprisonment for 6 months;
- someone who does not comply with a Court order to live with his wife is liable to a fine of RM1000 or imprisonment for 6 months;
- someone who does not treat his wife fairly in accordance with Syarak is liable to a fine of RM1000 or imprisonment for 6 months.
If that is not shocking enough, consider section 177 of the Enakmen Pentadbiran Ugama Islam dan Adat Resam Melayu Pahang 1982 (the enactment under which Kartika is sentenced). Under this section, a person who forces or allows his wife to prostitute herself with the intention of earning an income from such prostitution is liable to be fined RM4000 or imprisonment for 2 years or both and caning of not more than 6 lashes.
So, there we have it. RM5000 fine or imprisonment of 3 years and 6 lashes for consuming alcohol. And RM4000 or imprisonment of 2 years and 6 lashes for forcing one's wife to be a prostitute! Is there any wonder why Islam is viewed with ridicule and contempt?
We seem to have lost it. Somewhere between the Quranic verses, the hadiths and Sunnah and the various edicts by the ulamaks and muftis, we, the Muslims, have managed to reduce this great way of life called Islam into an instrument of hatred, unfairness, unjustness and ridicule. We have managed to let externalities triumph over the inner beauty and spirituality of Islam.
Under Syariah law, some consensus has been reached on the proper punishment (if at all it can be called "punishment") for consuming alcohol. Various hadiths Bukharis describe the Prophet and his followers beating the offender with palm-leaf stalks and shoes.
In a hadith, narrated by Abu Salama, Abu Huraira said, "A man who drank wine was brought to the Prophet. The Prophet said, 'Beat him!" Abu Huraira added, "So some of us beat him with our hands, and some with their shoes, and some with their garments (by twisting it) like a lash, and then when we finished, someone said to him, 'May Allah disgrace you!' On that the Prophet said, 'Do not say so, for you are helping Satan to overpower him.' "
In another, narrated by Ali bin Abi Talib: "I would not feel sorry for one who dies because of receiving a legal punishment, except the drunk, for if he should die (when being punished), I would give blood money to his family because no fixed punishment has been ordered by Allah's Apostle for the drunk. "
And those were the "punishments" meted by the Prophet himself.
There are however narrations which say that Caliphs Umar had sentenced an offender to 80 lashes. It was pointed out by Imam Feisal Abdul Rauf, the Chairman of the Cordoba Initiative, that that was in fact a sentence for slander as opposed to consumption of alcohol per se. If it was indeed a sentence for consuming alcohol, that begs the question, who is Caliph Umar to increase a punishment which was meted out by the Prophet himself?
Kartika has however been sentenced to receive 6 lashes.
The enormity and gravity of this sentence cannot be overlooked nor ignored. First of all, there is no procedure anywhere in Malaysia on how a sentence of this nature would be carried out in Malaysia. Is she going to be beaten up with shoes or date palm? Or with garments which are twisted like a lash? And by whom? And where?
Our authorities are well known of churning out half baked products. And one of those products is the law which our Parliamentarians or State Representatives churn out. The law says she must be caned. But there is no procedure to prescribe the execution of such caning.
Do we look at the civil law on how she should be caned? Okay. Let's us all look at the civil law then. The Criminal Procedure Code provides as follows in so far as a sentence of whipping is concerned. (Frankly, I do not know the difference, if any, between whipping and canning.)
- Section 286 : when an accused is sentenced to whipping, the Court may direct on the place and time of execution.
We pause here to note that the Syariah Judge, as far as I know, had failed to give such direction. Furthermore, this provision does not apply to a sentence by a Syariah Court because "Court", in the Code, is defined as the Magistrate's, Sessions or High Court. We are non the wiser.
Section 287 is important. It says when a person is sentenced to imprisonment as well as whipping, such whipping shall only be done after 7 days from the date of the sentence. This section is important because of what happened sometime last week.
Kartika was sentenced to a fine of RM5000 and 6 lashes. There was no custodial or prison sentence. And to top it up, there was no direction on how she was to receive the lashes. So what did they do? Last week, it was reported that the Syariah prosecutor had applied to the Syariah Judge, and was granted, an order that Kartika be detained in remand in the prison for 7 days so that she could be caned in the prison.
With all due respect to this two officers of the law (officers of the Islamic law, if I may add), a grave error and injustice has been committed against Kartika. A person can only be charged and sentenced once for one offence. Kartika has been charged, found guilty and sentenced to RM5000 and 6 lashes. That was her sentence. Nowhere had it been stated that she was to be imprisoned for 7 days.
The learned Syariah Judge, at the instance of the Prosecutor realised that the caning cannot be done. And so they issued a new and additional sentence of 7 days in prison. If that is not an injustice, I do not know what is. If I were to be nasty, I would say that that was a victimisation! That order, with respect, is in fact unconstitutional as it is repugnant to Article 7 of the Federal Constitution which provides that a person shall not be tried twice for the same offence.
Can the sentence be carried out by the Prison authorities? Well, the Criminal Procedure Code (our civil law), in section 288, says that:
- whipping shall be inflicted on such part of the body as the Minister charged with responsibility for public order directs. The Minister in question is of course Minister Hishamuddin. The part of the body to be whipped has been directed. It is the bare buttocks. The person who carries out this sentence is a trained personnel.
- the rattan shall be not more than half an inch in diameter.
Let me describe how this whipping is done. The executioner would hit the bare buttock with the rattan with such ferocity that upon the rattan hitting the bare buttock, the offender would fling forward. The executioner then would expertly pull the rattan towards himself in one swift movement that the skin would cut open, as if it has been cut by a very sharp knife. At this point, blood would rush out of the open wound. The next round, the executioner would expertly hit the same area where the first blow had landed earlier. The wound would get bigger. That's how. And it is supposed to go on for 6 times, in Kartika's case.
In real life, not many would be standing up to receive their 5th lash. That is why a the Code provides that a medical officer must be present to certify that the offender is fit state of health to undergo the whipping. If a person is not fit to receive the full number of lashes, the whipping must stop and the remaining number may be converted into a prison sentence or remitted.
That is how whipping under our civil law is done. If we compare that to the way the Prophet was described by the hadiths to have dealt with the offender, the civil law whipping is much much more painful and harmful than that which is prescribed by the hadiths. In fact they are not comparable at all. The civil law whipping is so harsh and painful that even fearsome and hardcore gangsters have pleaded to the Court to be spared whipping. The Syariah punishment is however aimed at humiliating the offender rather than inflicting pain.
And to top it up, the Code says expressly that women shall not be subject to the sentence of whipping! And to facilitate whipping under the Code, a warrant of execution must be issued by a Judge or Maigistrate. A Syariah Judge is not a Judge under the Code.
If Kartika were to be caned under the civil law, I would venture to say that she would be punished in a manner which is not prescribed by Syariah law in the first place. That would be a travesty. And it would be an irony that a Muslim court had seen it fit to impose a punishment which is not prescribed by Syariah law.
Where does that leave Kartika?
More importantly, where does that leave Malaysia?