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Sakmongkol ak 47

Wednesday, 23 September 2009

Between the Devil and the Deep Blue Sea

One piece of news that caught my attention was a statement issued by Dato Shahrizat Abdul Jalil. She has been at the forefront expressing reservations about the caning of Kartika Sari Dewi Sukarno. Sari Dewi is the model (as she calls herself) who was caught drinking alcohol by the Pahang religious authorities. She was tried by the shariah court and ordered to be caned in accordance with the Islamic way.

At the 11th hour the God fearing religious authorities made a volte face, deferring the sentencing. Ok, the excuse was acceptable. It was the fasting month and in keeping with the holy month, no punishment of that kind can be carried out. Perhaps the judge or officers of the religious court can enlighten us by which 'nas' was the suspension of the sentence be made permissible? Is this the same with cessation of hostilities during the holy month of Ramadhan?

I have supported the caning by way of reasoning I wrote in several earlier essays. I was also hoping that such a sentence must be carried out consistently on everyone irrespective of social ranks. Now the shariah court in Wilayah Persekutuan will be given a chance to show everyone in Malaysia whether the application of the laws is done in a uniform manner. It will be interesting to see whether the application of this aspect of Islamic laws pertaining to drinking alcohol is the same in Wilayah as in Pahang.

There may be a case to test the universality of such laws. It is provided indirectly in the case involving the ongoing dispute between two royal households in Malaysia. It is reported that members of 2 royal households were involved in a terrible altercation. One was grievously hurt. He then went with 15 or more people to the hotel in which the other party was staying to seek retribution. The other party had, it is said, 4 minders with him. The 4 people were able to overpower the 15 or more people and inflicted on the latter punishment of their own. The 4 must be Kung Fu fighters.

Like many others, I want to know, how come 4 bodyguards can overwhelm 15 or more people from harming a person whom they were protecting? Unless of course the 15 or more hired hands from the Negeri royal house were too drunk to do anything of any significance. Wait a minute- did I say too drunk? Then whatever court conducts the hearing, it must establish the state of mind in which the 15 men were in. if they were drunk and proof can be adduced, then the highest religious court can only do one form of sentencing- have them caned in accordance to the Islamic way.

That's the issue of caning. It's now the other way. It isn't a case where the person convicted is afraid, it now appears that the Government is the one stalling.

Let us go back to the statement issued by Shahrizat. When Shahrizat said the SIS has right to seek a revision because it is looking at bigger picture, I am puzzled. The convicted says she accepts the caning as a form of penance. This is a private matter between kartika sari (the wrongdoer) and the shariah court. So, how could SIS who isn't a party in a purely private adjudication matter acquire locus standi to seek a revision and file for a stay of execution? I am puzzled as to how a 3rd party can butt in into a case not involving a wrong against the state? The government must now promulgate a retrospective legislation to first make drinking alcohol a crime against the state. If SIS succeeds, will this create a precedence that in future any public spirited individual or group can interfere in the judgments of shariah courts? Isn't there a procedure such as that found in civil law that requires for such person/groups to do that, he or they must apply for leave from the AG or some other judicial enforcers?

It seems to me, Kartika is placing the whole nation on tenterhooks. Kartika is facing the caning sentence but the actual pain is felt by the nation. If kartika had been assigned a lawyer when she was tried, maybe that lawyer could have argued against the sentencing by referring to religious principles.

Now on what basis does SIS want to intercede in this case? Will it adduce arguments based on civil law and try to overturn shariah law? If SIS is allowed to do that on this basis, it will place the government uncomfortably between the devil and the deep blue sea. If it countenances the approach proposed by SIS, it will be seen as rejecting Islamic tenets. If it rejects SIS's approach, Malaysia will be seen cavorting with Stone Age druids.

Pray tell, where and what is the bigger picture. Seems to me the one on trial here are the shariah courts. They are in a between the devil and the deep sea situation.


Grokker,  23 September 2009 at 09:53  

Selamat Hari Raya, Sakmongkol.

Interesting piece this.

Like you, I think that Kartika's is a watershed case to test the Shariah system. And I too think the Shariah court's sentence should be carried out and that Kartika ought to be caned.

For one thing, she has agreed to be caned and for another, the sentence is on the statute books and is therefore lawful. The Hakim Syarie certainly didn't pluck it out of thin air, I don't think.

Now the question arises: how did the sentence get on the law books? Was it framed by the syariah lawyers or was it enacted by the Pahang legislature? I believe it was the legislature that put the sentence in the statutes.

The wisdom of the Hakim Syarie in awarding the sentence is a different question. Some may question its wisdom but the best person to answer that question is the qadi himself. He may have good reason for doing so. He has not spoken so we don't know.

Some of the sentences imposed by the Shariah courts may look bizarre to some but let's not forget that the common law system also produces some seemingly bizarre sentences: long custodial sentences for stealing RM30 worth of powdered milk to feed a starving baby and a slap on the wrist for swindling people of millions of ringgit.

I'm with you that the SIS and Madame Sharizat have no place in this matter. Both are in the business of looking after women's interest -- and I've no problem with that -- but the SIS in particular have been fighting for 'equality' for women in matters of religion. It cannot be that caning offends their delicate sensibilities because another person, a male Indon PR, has also been sentenced by caning for drinking in public during Ramadhan by the same court; and not a squeak from SIS. Now that Kartika has been treated equally before the law, why are they keen on a revision? Do they, these amazon warriors for equality, now want the Syariah Court to treat Kartika unequally?

Being a former member of the state legislature perhaps you can enlighten us on how Shariah laws were enacted, Sakmongkol -- why were they not made uniform by the enacting legislatures and why were seemingly 'barbarous' and 'archaic' laws put on the statutes? Why were the enforcement mechanism, so woefully deficient, not thought through before the enactments were passed? And why are some politicians so utterly devoid of a sense of shame for their colleagues' role in bringing odium to Islam through lousy legislation, and continue to pontificate on the matter.

Anonymous,  23 September 2009 at 10:04  

The bigger picture is simple.

Its really whether we care what the whole world thinks of us.

If we dont, go ahead and whack her. If we do, come up with some mickey mouse reason and ask her to buzz off.


Red Alfa 23 September 2009 at 16:36  

Dear Dato'

It was before your time that the Pahang legislature had made it into the statutes. One of those "melepaskan batuk di tangga cleverness".

I am glad you are among those pointing it out as glaringly flawed and as willing to speak out should it be used in more cavalier manner.

The usual bigwig offenders will continue thinking they would never be prosecuted under the statutes believing the Govt. has the "Pejabat Agama Islam" already leashed under the pervasive institutions of Ugama Melayu diRaja

AllahuAkbar, previous and ensuing hypocrisies shall together be laid bare along with the caning of Kartika.

Anonymous,  23 September 2009 at 18:43  

I believe this whole mess has been brought about by the eagerness of a party in government to show that it can also champion the religion of Islam to neutralise the claim for that position by another party. Backed by ulamas of the cari makan category, it went ahead with all those syariah legislations without covering all the implications. Yeah, they are now caught between a rock and a hard place, all right!

katdog,  23 September 2009 at 20:49  

Kartika has already accepted the judgment. I am no lawyer, but i find it incredulous that an external party can somehow interfere or appeal against the judgment.

Malaysian courts will be made a laughing stock if the punishment is not carried out. The accused has already admitted to the offense and accepted the judges verdict. How can the judgment be change when even the accused refuses to appeal?

The only way would be to say the judge had given a ruling exceeding his powers, but clearly that is not the case. So what excuse are they trying to come up with?

Anonymous,  28 September 2009 at 14:50  

What the hell, judgement passed and she asked to be spanked. Just honour what you've promised, a spank. Then, shoulder the embarassments the world accords us. Everyone knows who's behind the government anyway.

One the other point, it's been proven that law / justice is NOT applied the same across the board. The world should really study Malaysia's model and indentify the groups which are with special exemptions.

I really don't care anymore and just pissed off with the taxes I have to pay to feed assholes..

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