Friday, August 21, 2009

Caning for alchoholic consumption? Can or cannot?

However, most of my non-Muslim friends questions why was she the only person sentenced for caning? There are more Muslims drinking openly in KL pubs and there are also those titled Tan Sris', datuks' and what nots who openly drink in public places. Public places here means pubs, bistros, restaurants, hotels where public can patronise the place.

It is like shifting through the archive and lo and behold, this posting was supposed to be out on 23rd July 2009. But it never did. Why? Because I feel the pain and difficulty to express my thoughts and stand on this.

If there is one out there who is in the dark, this is about the judgement passed down by Kuantan syariah court on a woman for drinking. She was fined and ordered 6 strokes of rotan. And bear in mind that the woman accept the decision and insist on being publicly caned. Latest news mentioned that she will be placed in Kajang prison from 24th August to be caned within the prison walls and not in public as earlier stated.

You see, this is a landmark decision and a very important judgement mete out by the Syariah court. I am not going to give my opinion whether the judge err or not. That is his job and his responsibility as well as his expertise.

However, most of my non-Muslim friends questions why was she the only person sentenced for caning? There are more Muslims drinking openly in KL pubs and there are also those titled Tan Sris', datuks' and what nots who openly drink in public places. Public places here means pubs, bistros, restaurants, hotels where public can patronise the place.

Although I have answered that this judgement was passed down in Kuantan syariah court and maybe has not been implemented in KL or Selangor syariah courts, it leaves a big question mark - why her and why only Kuantan syariah court braved enough to pass the judgement? Is it because the woman has migrated to Singapore? Or is it because she do not have any "cable connection"? So, for those who know out there - tell me how can I satisfactorily answer to my non-Muslim friends?

This also open another area to be discussed - that of judgement to rapist. My non-Muslim friends pointed out that to their understanding on Muslim laws, those proven to rape and murder will be publicly executed. They ask why is it not carried out by syariah court. My answer to them is that the federal law did not allow the syariah court to cover criminal case such as this. That's my best answer. Maybe those in the legal fraternity can enlightened me on this.

Moral of the story : If it needs to be enforced, let's enforced without fear and favour. Maybe a few public canings to those Muslim drinking Tan Sris' will do good to stop Muslims from consuming alchoholic drinks, at least in public and public areas.

Oh yes, before my grey matter fails me...the original posting slated for 23rd July 2009 posting is produced below in full...happy reading...

STAR reported that a part time model was fined and sentenced to 6 stroke caning for publicly consuming alchohol in Kuantan.

Since then, the news has been debated where most feel caning is too harsh for a first time offender. Those who feel so pointed out that :-

  1. The caning sentence was a bit harsh for a first-time offender;
  2. the judge should take into account several mitigating factors such as the fact that the model was a first time offender and had pleaded guilty to the offence;
  3. in many cases, they either fine or impose a jail term on the offender. But in practice, they usually impose a more lenient sentence. In this case, it was a harsh sentence;
  4. a similar case where the Negri Sembilan Syariah High Court sentenced a Muslim man to 30 days imprisonment for consuming alcohol in public;
  5. caning and the death penalty were forbidden against women from the Hanafi school of thought;
  6. caning sentence contravenes the Prison Regulations 2000 which states that female offenders cannot be caned;
  7. the offender can be sent to a rehabilitation centre for repentance and that is Islamic. Even Section 50 of the Wilayah Persekutuan Syariah Criminal Law provides this mechanism for up to six months;
  8. while Kartika herself appears satisfied with the punishment and has decided not to appeal against the sentence, other parties are concerned whether this case would set a precedent;

These comments are not made by laymen but by Islamic criminal law experts, Dr Siti Zubaidah Ismail and Assoc Prof Dr M Azam M Adil. Nik Aziz, on the other hand praises the model who wants the court to expedite the sentence.

Mohd Isa Abdul Ralip, President of Malaysian Syariah lawyers association noted that :-
  1. Islamic law in the country that allows for the caning of Muslims for having alcoholic drinks is an established one;
  2. the law was passed 25 years ago by the federal government;
  3. it may have escaped the public's attention because in the past most who were found guilty were usually given lesser penalties;
  4. the Syariah Court Act 1984 is a federal law that regulates the different types of punishment in all the states;
  5. the last time a man was whipped under the same law for drinking was about 10 years ago in Kelantan;
  6. all Muslims, regardless of whether they are tourists or Malaysians, are subject to local Islamic laws;
  7. under the Syariah Criminal Offences Code, only Pahang, Perlis and Kelantan provide for whipping of women;

Although many in the blogospehere looks negatively at the sentence, this scribe feels that we have to salute the judge for having the balls to mete out the sentence. You see, in my younger days, I was made to understand that it is not easy to be a judge, whatmore to be a fair and god-fearing judge.

What puzzles me is the act of the 2 academicians who feel that the sentence is too harsh. In leading to that conclusion, they have use other states (not Pahang) legislation to say that there are other alternative sentences. They have also pointed out the Hanafi school of thought in defending their arguments.

It is not a surprise when there are many Islamic scholars who receive their education in the western universities and thus have a more liberal thinking and more logic based. However, they should also realise a few things :-
  1. It is not a matter of who is the first one to face the caning sentence, but rather it has to be carried out as deterrence to the rest;
  2. if the courts keep on collecting fines, then the problem of public alchohol consumption by Muslims will never ends. Instead it will be a routine offense where the offenders gladly open up their wallets to pay the fines. Don't believe? How many of the offenders are from well to do group? Make a quick survey and the answers is there, right in front of our eyes;
  3. the sentence, if carried out, will most probably deter future offenders provided that once the sentences are handed out, there is no room to appeal for lighter sentences. The only avenue for appeal should only be whether the offense are committed or not;
  4. the whole Muslim community should first admit that the problems are widespread and the sentences is part of the solution to the issues at hand;
  5. it is unfortunate for the model to be handed down the sentence but being a public figure (of sorts), she has to bear the consequence of her actions;
This is a religous issue. Let the Muslims settle the issue. This is not a matter of human rights or gender based issue. There are differences in thinking between the western and Islam. Let the west sort out problems their way whilst Islam sort out their issues their own way.

After all, there is a verse in the Koran that summarily means "You have your own religion whilst we have our own (religion), We don't follow yours as you will never follow ours (of religion)" Never the twain shall meet...

Till then...G'nite M'sia...wherever u are...

9 comments:

Anonymous said...

Got nothing much to say abt this except that for certain things in life, it is almost impossible to monitor and police.

Let me ask a simple question, is it against the law to buy alchol or is it against the law to drink alcohol for a Muslim?

nightcaller said...

Anon 9:54

The answer is : Islam forbids Muslims consume alchoholic drinks.

looes74 said...

Nightcaller,
I am not going to argue with you on Islamic law. Who am I to argue? However, you must remember Malaysia is still a secular country though Islam is official religion
Because there are non muslims among the midst plus the gal is the first offender, would not Syariah Judge exercise certain wisdom & discretion?
Talking about punishment, Singapore is damn good at this. Littering invites hefty fine, public condemnation with video camera shooting at it. With all these, no litterer in Singapore.
Muslims should focus on changing of hearts & minds. This is the best. Perhaps, it's time for the holy spirit to come.

Sorry Nightcaller,
I am into christian mode. Hehehe!

P.S : By the way, in the 70s, Singapore officers are lined up at Woodland checkpoint to provide free haircut to those who came with rather Woodstock look
LKY came down hard on "yellow" culture to create a Rugged Society. Most Malaysians who kenna forced to have haircut seems to come from........

Nightcaller,
Does it succeed? Hehehehe!

nightcaller said...

Looes74

Well, Mahathir has declared that Malaysia is an Islamic country complete with backing from MCA and MIC then. :) It does not stop from some Muslims consuming alchohol...

Wah...you are in Christian mode..at least its better that Rias's changing mode from Bahasa Malaysia to English (if u follow the video).

Finally, those glorious 70's just after woodstock...how can I forget about some long-haired friends visiting S'pore only to return without most of their "crown jewels"....it works then.

Honestly, I salute the woman for accepting the punishment and then demand that it should be open to public. In my Islamic understanding, hopefully the woman is bestowed the "hidayah" by Allah.
Do not stop there, carry on apprehending and caning those Muslims who consume alchohol, including the "big shots". Then only the Muslims will reject alchohol as S'poreans disdain long hair (for men, that is)...:)

looes74 said...

Nightcaller,
An intersting article! Just Read!

looes74

After 'ultra vires' comes 'lacuna'
The Malaysian Insider’s Legalities complicate Kartika’s caning refers to the case of Kartika Sari Dewi Shukarno who was to be whipped this week for drinking beer.

Kartika Sari Dewi in Indonesian means the ‘goddess of the essence of the star’ (wow). And with such a name perhaps she has been protected by a Higher Being.


Syariah experts have discovered a lacuna in the court’s punishment decree against her, which may possibly prevent the authorities from caning her.

By the way, in case any Utusan reporter is reading this, ‘lacuna’ does not mean any insult to Islam, DPM Muhyiddin or Rais Yatim wakakaka.

According to Terengganu Chief Syariah Judge Datuk Ismail Yahya, and supported by senior civil law lecturer Professor Shad Saleem Faruqi, Kartika was fined RM5,000 and given six lashes by the Pahang Syariah Court for the offence of yamseng-ing on 12 July 12 two years ago at a nightclub in Cherating but no jail sentence.

In Malaysia only the prison department and no one else may cane a prisoner.

As Kartika wasn’t sentenced, she is not a prisoner, thus she needn't go to prison. Therefore how is the authority going to cane her?

Well, according to the Malaysian Insider, Islamic Development Department (Jakim) legal adviser Mohd Zulbahrin Zainuddin unsurprisingly asserted it requires just a warrant to require Kartika to turn up at the prison for sentence to be carried out.

He mumbled unconvincingly: “Kartika will just be detained. The prison is just a place for her to wait. If Kartika wants to object, she has to go to the Syariah High Court and file an appeal. Since she has not done so, it is considered a straightforward case.”

Not so, said Professor Shad Saleem Faruqi, arguing that a detention order (via a warrant to detain) is in fact a second sentencing, i.e, an additional penalty to the caning and RM5,000.

And as Kartika has paid the RM5,000, she can’t be jailed in lieu.

But she can’t be cane unless she is jailed. And she can't be jailed as there's no jail sentence imposed on her - the 'lacuna' that Professor Shad mentioned.

“We’ve got a lacuna, that is the person who is to be whipped must be jailed. According to the law, nobody can be deprived of his life or liberty, except by the law. In this case, the law came to an end when the trial ended.”

“The judge imposed only two punishments [i.e. RM5,000 and caning]. He cannot now turn around and impose a third punishment. This is illegal. It’s almost like double jeopardy.”

Shad also quoted Article 7 of the Federal Constitution which states that if a person has been convicted of an offence, he or she could not be tried again for that offence.

“Kartika was not sentenced to jail initially. It would be unjust for the court to impose a new penalty.”

“Only the Syariah Appeal Court can deal with this matter now. So, the DPP should appeal to have the sentence increased. But the judge of the first instance should not be increasing the sentence himself. That is wrong.”

Shad explained: “There are only two types of detention: remand and prison. It can’t be remand because Kartika was convicted. And it can’t be imprisonment because she was not given a jail sentence.”

Terengganu Chief Syariah Judge Datuk Ismail Yahya warned Jakim that the whipping will be ultra vires [any Utusan reporter around? Wakakaka] and opened the authorities to a legal suit.

He advised: “Kartika can sue. This is because her detention, and subsequently the whipping, is illegal.”

For those Utusan reporters and Islamic Development Department (Jakim) legal adviser Mohd Zulbahrin Zainuddin, I say not ‘lacuna’ nor 'ultra vires' but:

Alhamdulillah Allahu-Akhbar

nightcaller said...

Looes74

Must be catch 22 situation. They want to carry on the caning and yet technically they cannot carry it out.

Let's see how the syariah court handles it...

looes74 said...

Nightcaller,
Just read Malaysia Insider! I still believe in education & public campaign. Another hallmark of Singapore campaign.
Hehe, even Najib & Mahathir are stealing from Singapore's relentless public awareness campaign. Of course, it has slacken a bit. Hence, more rubbishes seen nowadays
I love that productivity campaigns. Of course, side effect is people are treated like digits. Hmm......downside of democratic socialism......It's all Toh Chin Chye's fault (Taiping born. Me too Me too.)

nightcaller said...

Looes74

Yes, the syariah court blundered and has since released Kartika. However, the news ius still mixed whether she is pardoned or released unconditionally or release pending caning. In short - nobody seems to know what is actually happening.

The woman entrepreneur minister urged Kartika to sue the government (heck, the minister is part of the government) whilst the Katika's father is pushing for the caning to be done. Maybe you are right - not enough awareness / campaign awareness.

And as u say it, all the campaigns are Toh Chin Chye's fault and u share the blame for hailing from taiping too...does that mean all Taipingites are the same? If that is true, then I dread for Zorro who also come from Taiping :) Not the masked Zorro but the unmasked Zorro, that is...

Anonymous said...

Good evening

We do not agree with this year BRIT awards decision.

Please attend our little web poll

http://micropoll.com/t/KDqOnZBCWt

Lady Gaga can not be better than ?????

Poll supported by BRIT awards 2010 sponsor femmestyle
[url=http://www.femmestyle.ch/nosecorrection.html]nasenkorrektur[/url]

PRINCE HARRY WISHES HAPPY BIRTHDAY TO THE BRIT AWARDS
With a special birthday message from Prince Harry for the 30th Anniversary of the BRIT Awards