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Malaysia: Court of appeals upholds the caning sentence of Kartika

The International Solidarity Network, Women Living Under Muslim Laws (WLUML), and the Global Campaign to Stop Killing and Stoning Women! (SKSW) are greatly concerned that the caning of Madam Kartika will take place in the next few days, possibly in secret. The caning sentence was upheld in the Malaysian court of appeals on 28 September in spite of clear statements from government authorities casting serious doubt upon the wisdom of such punishments. WLUML and SKSW support the Malaysian Bar Council's call for Zero tolerance for caning as a cruel, inhuman and degrading punishment.

In their memo of 25 August 2009, The Joint Action Group for Gender Equality (JAG) set out compelling reasons why Kartika’s case should be reviewed - on syariah, constitutional and legal grounds, international human rights principles, and based on sentencing guidelines. They include:

Syariah Grounds

  • (i) Qur’anic teachings emphasise repentance, forgiveness and personal transformation. Even the verses on punishment for theft (Surah Al-Maai’dah 5:38-39) and robbery (5:33-34), emphasise that an offender who repents after his crime and amends his conduct, is redeemed, as God is forgiving and merciful. 
  • (ii) Kartika has repeatedly expressed remorse and repented for her action. She should be forgiven, instead of be given the maximum punishment. 
  • (iii) There is no consensus in Malaysia on the range of crimes for which whipping is prescribed,. Only Pahang, Perlis and Kelantan provide whipping for alcohol consumption under their Syariah Criminal Offences Codes.

Sentencing Guidelines

  • (iv) Under normal sentencing guidelines, Kartika should not have been given the maximum punishment as she had pleaded guilty, was a first time offender and has shown and continues to show remorse. 
  • (v) The whipping sentence is also disproportionate to the gravity of the offence committed, especially since there was no violence involved in the commission of the offence. 
  • (vi) When an accused pleads guilty, it is a mitigating factor. Therefore, the judge should have taken that into consideration in favour of the accused, and should not have meted out the maximum sentences in terms of the fine imposed and number of strokes for whipping. 

Constitutional and Legal issues

  • (vii) Can the Kajang prison which is established under Federal law execute an order issued by the syariah court which is under state jurisdiction? 
  • (viii) Can a Federal authority execute a sentence of whipping against a Muslim woman when the Prison Regulations 2000 forbids corporal punishment to be applied to a female prisoner (of any age), or a male prisoner who is more than 50-years-old? 
  • (ix) Can the Pahang Syariah Court simply impose an additional sentence of imprisonment for seven days after the trial had ended and the case deemed closed, just for the punishment of whipping to be carried out? 
  • (x) The victimisation of Kartika violates constitutional guarantees of equality and non-discrimination under Article 8(2) of the Federal Constitution. Under federal law, a woman cannot be whipped, but under syariah, she can. Daily, thousands of Muslims violate the syariah law which forbids alcohol consumption. And yet, Kartika is victimised with the maximum punishment to set an example to others. 
  • (xi) Is it the duty of the state – in order to bring about a moral society – to turn all “sins” into “crimes against the state”? Or should this be private morality best left to the religious conscience of the individual, rather than be deemed public morality and turned into a matter of law? As practice shows, the enforcement of such moral policing laws has often led to controversies, abuses and public outcry. In the end the Federal Government intervenes and those arrested are released.


International Obligations

  • (xii) As a signatory to the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) since 1995, Malaysia is committed to uphold respect and equality for women. This commitment is complemented by Malaysia’s obligations under the Universal Periodic Review whereby Malaysia’s delegation had during the UPR process in February 2009 reaffirmed Malaysia’s “respect for human rights long established given the country’s character as a melting pot of various cultures, religions and ethnicities”. 
  • (xiii) Malaysia is also committed to the 1988 ASEAN Declaration on the Advancement of Women, the 2004 ASEAN Declaration on the Elimination of Violence against Women and the 2005 Putrajaya Declaration and Programme of Action on the Advancement of Women in Member Countries of the Non-Aligned Movement. In the long term, we urge the Government to conduct a comprehensive review of the Syariah Criminal Offences laws of this country, with a view to repeal such laws, thus enabling all Malaysians to be governed by a single Penal Code under federal administration. 

In 2005, Sisters in Islam , a member of JAG submitted a memorandum to the Government to reiterate its call for the Syariah Criminal Offences laws to be repealed on the grounds that they have no basis in Islamic legal theory and practice; they conflict with the Federal Constitution and that they conflict or overlap with the Penal Code and other federal laws. SIS had commissioned two reviews by Professor Muhammad Hashim Kamali and Professor Shad Saleem Faruqi and these have been shared with the Government. The Government must show the political will and courage to once and for all deal with the implications of such intrusive moral policing laws. The implementation of these laws continues to raise numerous profound and controversial issues at the Islamic, constitutional, and human rights levels. They also fail to reflect the changing realities of Malaysian life today. The continual public outrage over moral policing laws reflects the disconnect between state control of private lives and personal choices, and how Malaysians view their entitlements to these rights. This can no longer remain unresolved.

WHAT YOU CAN DO

  Please write to, fax and telephone the Malaysian authorities urging them to IMMEDIATELY overturn the sentence of caning on constitutional as well as judicial and religious grounds, reminding them that it is in breach of several international laws:

Below is a sample letter:

[Dear Sir/Madam/Your Excellency]

I am deeply concerned to learn that the Malaysia court of appeals has upheld the sentence of caning of Madam Kartika.

Madam Kartika Sari Dewi Shukarno, 32, married with two children, has been sentenced to six strokes of the rotan in Pahang state. We fear the implementation of this sentence would set a very dangerous precedent for women (both citizens and non-citizens) to be caned in Malaysia in contravention of Malaysia's own constitutional law. Such precedent would be set irrespective of whether Madam Kartika herself accepts the sentence imposed on her.

The urgency of a government review of the caning penalty for alcohol consumption has been underlined by further cases in which the same judge passed this sentence on five Muslim men and women, including Nazarudin Kamaruddin, 46, also in Pahang state.

In early August, the chief judge of a state Sharia appeals court ordered the sentence to be deferred pending the review, and the Women, Family and Community Development Minister Datuk Seri Shahrizat Abdul Jalil was quoted as saying, “The overriding view was that the sentence meted out was too harsh and is not commensurate with the offence,”.

In the meantime, Syariah prosecution head Datuk Abdul Rahim Jaafar said the department would not announce when 32-year-old Kartika Sari Dewi Shukarno would be caned, scheduled for after the end of the Muslim holy month of Ramadan, to avoid a "media circus".

The department would only announce it after the punishment had been carried out. Madam Kartika was sentenced by the Pahang Syariah Court to be lashed six times and fined RM 5000 as punishment for drinking beer with her husband in a hotel nightclub in Cherating (Pahang state) on 12 July 2007.

The mother of two was charged under Section 136 of the Pahang Islamic and Malay Traditional Practices Enactment (Amendment) 1987. The sentence was expected to be carried out on 4 August 2009. However, the Syariah High Court then sentenced Madam Kartika to an even harsher punishment by ordering her to be detained for seven days. Judge Datuk Abdul Rahman Yunus also approved another two applications by the state Religious Department to allow the prison's director to carry out the caning and release Madam Kartika after the punishment was served.

Following national and international condemnation, the sentence was indefinitely suspended, pending review. Sisters in Islam (SIS) of Malaysia submitted an application for revision and stay of execution of the caning sentence passed on Madam Kartika.

However, I have now learnt that the caning will shortly take place. I am deeply concerned about the increased state-imposed violence exemplified by Madam Kartika’s case. As a member state of the United Nations, Malaysia has agreed to the Universal Declaration of Human Rights (UDHR).

By detaining and caning Madam Kartika, I believe Malaysia violates the following articles of the UDHR:  

  • No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks (Article 12). 
  • No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment (Article 5). 

At its 61st Annual General Meeting (17 March 2007), the Malaysian Bar called for the abolition of whipping as a punishment for any offence as it is “anachronistic and inconsistent with a compassionate society.” Furthermore, I maintain that being sentenced to caning violates Madam Kartika’s right to physical and mental integrity. I find the punishment of Madam Kartika to be disproportionate to the crime committed, and strongly protest the use of violent punishment in this and all other pending cases. For these reasons, I urge for this case to be suspended.

Yours sincerely,

[name/organisation]


Embassies
You can find the embassy of Malaysia in your country here: http://www.embassiesabroad.com/embassies-of/Malaysia

The government of Malaysia

 Dato' Sri Mohd Najib bin Tun Abdul Razak,
Prime Minister of Malaysia,
Prime Minister's Office,
Main Block, Perdana Putra Building,
Federal Government Administrative Centre,
62502 Putrajaya, Malaysia
Fax: +603-88883444
E-Mail: ppm@pmo.gov.my

Tan Sri Abdul Gani Patail
Attorney-General of Malaysia
Attorney General's Chambers of Malaysia
No. 45, Persiaran Perdana, Presint 4,
62100 Putrajaya, Malaysia
Tel : +603 - 8872 2000
Fax : +603 - 8890 5670
E-Mail: ag@agc.gov.my

Y.B. Senator Dato' Sri Shahrizat Abdul Jalil
Minister of Women, Family and Community Development
Ministry of Women, Family and Community Development Aras
1-6, Blok E, Kompleks Pejabat Kerajaan Bukit Perdana, Jalan Dato' Onn
50515 Kuala Lumpur, Malaysia
Tel: +603 - 2693 0095
Fax: +603 - 2693 8564
E-Mail: shahrizat@kpwkm.gov.my; roses@pmo.gov.my; harjeet@kpwkm.gov.my; eikmarr@yahoo.com

Inspector-General of Police
Tan Sri Dato' Seri Musa Bin Dato' Hj.
Hassan Ibu Pejabat Polis Diraja Malaysia,
50560 Bukit Aman, Kuala Lumpur, Malaysia.
Tel: +603 - 2262 6222
Fax: +603 - 2070 7500


BACKGROUND

  Kartika Sari Dewi Shukarno was sentenced to six lashes and a fine of 5,000 ringgit ($1,400) for consuming alcohol. Shukarno, a 32-year-old model, pleaded guilty in the court in eastern Pahang state to a charge of drinking beer when Islamic authorities raided a hotel nightclub. Consuming alcohol is a religious offense in Malaysia only for Muslims, who make up nearly two-thirds of the population. Offenders are prosecuted in Shariah courts, which handle cases mainly related to family and moral issues for Muslims. Most offenders are fined, but the law also provides for a three-year prison term and caning. Shukarno was the only Muslim caught in the raid at the Pahang nightclub.

Malaysian clubs and lounges typically serve alcohol but are not legally required to check if customers are Muslim before serving them, so the hotel nightclub operators were not charged with any offense. The legal system in Malaysia is complex because the Malaysian state has accepted many of the inconsistencies of British colonial rule. There is in effect a two-track system. Non-Muslims (Malaysian and otherwise) are subject only to secular law. But Muslims (both Malaysian and otherwise) are subject to both secular law and shariah law. So Muslim Malaysians are subject to two sets of laws.

So while Kartika can be caned under the shariah law, Malaysia's penal code prohibits caning of women. But the shariah law in Malaysia is under the jurisdiction of 13 separate states with their own interpretations. Only three states in Malaysia — Pahang, Perlis and Kelantan — impose caning for drinking alcohol. In the other 10 states it is punishable by only a fine.

Kartika caned would set a precedent that could subject the hundreds of thousands of Muslim Indonesian women working in Malaysia to the same punishment, at least in the three states where this particular interpretation of shariah law is in force. There are also many Muslim Singaporean women living in and visiting Malaysia, all of whom could suddenly be subject to this same law. It has been reported by human rights organisations, according to Amnesty International, that undocumented migrants considered "illegals' in Malaysia are being punished through caning, by virtue of the penalties under the Immigration Act, and are in fact the primary victims of corporal punishment.

The World Refugee Survey in 2005 placed Malaysia as one of the worst offenders of refugee rights, documenting cruel and inhumane treatment in Malaysia's prisons and detention camps. Often the punishment of caning, although discretionary, is handed down, as a deterrent. There are sets of demands now being put forward to the Malaysian government to stop caning as a form of torture altogether and to repeal the two sets of justice system.

In 2006, The Malaysian Bar at its AGM passed a resolution declaring that the corporal punishment of whipping is cruel, inhumane and degrading and called for its abolishment. 'It is time for Malaysia to subscribe to Article 5 of the Universal Declaration of Human Rights, that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” and reject corporal punishment altogether as a form of sentencing. We all have the ability to affect the consciousness of members of our family, community, nation and planet. The voices of those who support cruelty are loud, but the silent majority can make themselves heard.' (Renuka T. Balasubramaniam, member of the Human Rights Committee (HRC), Bar Council Malaysia)

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