Disassociation with Malaysian Bar President’s Press Statement of 18 February 2010

First, the Press Statement

Press Release: Corporal punishment is still against international human rights principles even if carried out secretly
Thursday, 18 February 2010 03:49pm

The Malaysian Bar is shocked and disappointed with Minister of Home Affairs, Dato’ Seri Hishamuddin bin Tun Hussein’s announcement yesterday that three Muslim women were caned by the prison authority for offences committed under the Syariah Law.

The Malaysian Bar Resolution unanimously adopted at its 61st Annual General Meeting on 17 March 2007 denounced and rejected whipping as a punishment for any offence as it is anachronistic and inconsistent with a compassionate society. Our position echoes international human rights norms that condemn whipping and other forms of corporal punishment as cruel, inhuman or degrading treatment.

Given that the Kartika issue remains unresolved and the public outcry on issues of constitutionality in regards to the fact that corporal punishment is forbidden for women under Section 289 of the Criminal Procedure Code, it is indeed shocking that the Government has made the announcement only after the punishment had been carried out.

We call on the Government to immediately review and abolish all forms of punishment involving whipping and proceed to comply with international norms and principles on punishment.

Ragunath Kesavan
President
Malaysian Bar

18 February 2010

My reply.

Disassociation with Malaysian Bar President’s Press Statement of 18 February 2010.

With respect Mr. President, and with reference to your press statement of 18 February 2010, I wish to note a few points:-

1. There is a difference between normal caning and Syariah caning.

2. The Malaysian Bar does not (strictly speaking) represent Syarie lawyers who practice in the Syariah Courts.
   

3. As I understand it (and I welcome correction), the punishment of caning/flogging for an adulteress is allowed in the Quran. Adultery is clearly an "offence" against the percepts of Islam if committed by a person professing the religion of Islam.

4. So, for the Malaysian Bar (who does not represent Syarie lawyers) to make a sweeping statement calling for the review and abolishment of this form of punishment (without commenting on how Syariah caning is different, and without explaning that section 289 of the CPC does not bind the Syariah Courts – 2 reasons that immediately leap to mind) is a little insensitive; having regard to the fact that this particular offence derives its authority, ultimately, from the Quran – which to a Muslim is God's very own words.

5. The short reference to 'international norms and principles of punishment' as a comparison does not do justice to this issue.

I therefore disassociate myself from this press statement.

19/2/2010

P.S. Was it prudent that the announcement about the caning of the 3 women for adultery came only after the fact? Of course NOT, given the background of the whole issue.

Please do not speak for Kartika. She wants to be caned. Leave her in peace.

04th October, 2009

To:

1. Sisters in Islam (SIS)
2. Women's Aid Organisation (WAO)
3. Persatuan Kesedaran Komuniti Selangor (EMPOWER)
4. All Women's Action Society
5. Women’s Centre for Change (WCC)

[collectively known as the Joint Action Group for Gender Equality (JAG)]

Hello,

I could not help noticing your memorandum to our Prime Minister dated 25th August 2009 which has elicited a strong response (and a counter memorandum dated 01st October 2009) from several Islamic NGOs. From the stand-point of a disinterested observer to the whole Kartika-beer-caning saga, I would like to point out that I believe your take on the issue is wrong.

Kartika, a Muslim woman, was charged under Section 136 of the Enakmen Pentadbiran Ugama Islam & Adat Resam Melayu Pahang 1982 (En. 8/82) which states that it shall be an offence for a Muslim to drink an alcoholic beverage and if found guilty, shall be punished to a maximum of fine of not more than RM5,000.00 or imprisonment of not more than 3 years or both and caning of not more than 6 strokes ("… denda tidak lebih daripada lima ribu ringgit atau penjara tidak lebih daripada tiga tahun atau kedua-duanya dan sebat tidak lebih daripada enam kali sebatan").

Kartika pleaded guilty and was sentenced to a fine of RM5,000.00 and 6 strokes of the rotan. She has paid the fine and is awaiting the sentence of caning.

That should have been the end of it. But against her very wishes to not appeal the conviction nor sentence (also reported at The Star, New Straits Times), you have taken it upon yourselves to speak on her behalf. This I think is unnecessary.

Kartika could have:-

1. challenged the charge (or conviction) and ventilated the point that beer is technically not prohibited in Islam, or that she is not subject to the Pahang enactment, or any one of the cogent reasons you cited in your memorandum; or
2. challenged the sentence, in that it was excessive

and have the conviction and/or sentence reviewed by the Syariah Appeals Court.

This she did not do. She chose to not appeal at all, even at the encouragement of the Prime Minister (also reported in The Sun, & MySinChew). There has been no allegation that she was forced to plead guilty nor that she was not of sound mind when she made the plea.

Therefore your current efforts to speak for her seems a bit disingenuous. The lady does not want what you want for her (to appeal). She is an adult. She has not appointed you to speak on her behalf. The decent thing to do would be to not press the point further.

I do hope you give due consideration to the above.

Jason Kay

http://jasonkaykl.blogspot.com/2009/10/please-do-not-speak-for-kartika-she.html

c.c.

1. Persatuan Peguam Syarie Malaysia (PGSM)
2. Persatuan Alumni Kolej Islam (ALKIS)
3. Jemaah Islah Malaysia (JIM)
4. Angkatan Belia Islam Malaysia (ABIM)
5. Persatuan Peguam Muslim Malaysia (PPMM) [not sent]
6. Berita Harian
7. New Straits Times
8. Sin Chew Jit Poh
9. The Star
10. The Sun
11. Utusan Malaysia