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...