Tuesday, September 1, 2009

The Misguided JAG

Update 21-09-2009 

In response to the memorandum by JAG to the PM, I wish to state as it appears in red immediately after each of the relevant paragraphs.
Justice for Kartika - Memo to PM. Read the full text here

The Joint Action Group for Gender Equality (JAG) appeals to YAB Dato' Sri Mohd Najib bin Tun Abdul Razak to take immediate steps to address the issue of the sentence of whipping meted out to Kartika Sari Dewi Shukarno.
JAG also urges the government to review whipping as a form of punishment as it violates international human rights principles which regard whipping and other forms of corporal punishment as cruel, inhuman and degrading treatment. Moreover, research has shown that whipping is not an effective deterrent, even to violent or sexual crimes.
The court's decision to whip Kartika for consuming alcohol has led to a public outcry at the national and international levels, damaging Malaysia's reputation as a moderate Muslim country. It also fuels the widespread belief that Islam is a religion that discriminates against women. While civil law in Malaysia prohibits the caning of women, syariah law makes no such exception.
JAG believes there are compelling reasons why Kartika's case should be reviewed - on syariah, constitutional and legal grounds, international human rights principles, and based on sentencing guidelines.
(I am very surprise that JAG had chosen to send a memorandum to the PM knowing full well that the PM is part of the Executive and JAG and all other NGO's had been stating that there shall be Separation of Powers between the Executive, the Legislative and the Judiciary. The PM must not and shall not in any way be made to influence the Judiciary! I must also state that this memorandum by JAG to the PM, is misconceived and a total abuse of the democratic process!)

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.
(The law under which Kartika was sentenced, was legally, constitutionally and democratically enacted, gazetted and in force, being passed by the State Legislative Assembly of Pahang AND ASSENTED to by the Ruler KDYMM Sultan of Pahang)

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.
(Where is the evidence of remorse during the time the sentence was passed by the Syariah Court? Any indication of remorse (if at all there is any) was after the sentence was passed and when the matter was highlighted by the media especially the foreign media. No notes of proceedings or notes of evidence was ever made public to be made as evidence in support of JAG's contention)

(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.
(Disparity of sentencing is not something which is not allowed by the law! How about sentences of whipping in other cases? Why was there no outcry by JAG?)

(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.
(This is entirely the prerogative of the Judge hearing and sentencing the case. It is not a hard and fast rule which must be followed by Judges and not the right of JAG to question. Bear in mind that Kartika did not appeal for her sentences to be reduced or likewise)

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?
(In Malaysia, Kajang is one of the Prison for women. It is the legal authority of the Court to decide which jail to send the person and it is stated and provided for in the Enakmen Tatacara Jenayah Syariah Pahang 2002. All other women sentenced to jail were also sent to Kajang.)

(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?
(Whipping is not allowed for women under the Criminal Procedure Code but allowed under the Syariah Law. CPC cannot overrule the Syariah Law!).{The Syariah Criminal Procedure Enactment 2002 can also be obtained in English. Please picture below}

(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?
(It is NOT an additional sentence, the order was for the implementation of the present sentence of whipping duly passed by the Syariah Court in Kuantan and duly provided for in the Enakmen of 2002. I am convinced that JAG had not read the provisions of the Enakmen. Please see Section 125 (4) and is produced in the picture below.)

(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.
(This is rhetoric and not the position under the present law that is in force. The remedy is amendment or abolition of the law to be tabled in the Parliament and Dewan Undangan Negeri Pahang and not within the powers of the Prime Minister of which the memorandum was sent!)

(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.
(This argument clearly show lack of legal especially Islamic legal knowledge and Islam on the part of JAG)

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 complimented 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.
(In response to all the paragraph about International Obligations above, JAG should have taken note of the situation in Singapore where an American boy who was sentence to whipping for spraying graffiti and inspite of all sort of international outcry including a plea by the President of USA, the world stood firm to finally watch the Singapore Government proceeded with the meting out of the sentences)

The Joint Action Group for Gender Equality (JAG)
Petaling Jaya
25 August 2009

On the premises of my argument abovestated in red, JAG is clearly misguided! I humbly pray that the PM must dismiss the memorandum as it is misconceived, frivolous, scandalous and an abuse of process, aimed at undermining the powers and authority of the Syariah Court and the religion of Islam.

1 comment:

  1. Sir, The Joint Action Group for Gender Equality (JAG)is stenching of hypocrisy and this memorandum presented to the PM in Putrajaya stinks all the way to Damansara and Kuala Lumpur.

    If indeed they are for gender equality, then they should celebrate the Sharia Law because in compliance to their cause, the Sharia Law makes no exception and gives equal punishment to both male as well as female offenders.

    Contrary to their skewed view, this action doesn't fuel the widespread belief that Islam is a religion that discriminates against women. If anything it celebrates the equality that Islam brings to humanity regardless of gender.

    If indeed they are barking for equal rights for women, then they shouldn't be asking for women offeders to be treated any differently than men for the same offence. If this group had an ounce of credence to their name and cause, then they should be encouraging women to be accorded the same courtesy as men in any Law be it the Sharia Law or even the Civil Law.

    If the PM gives serious attention to this outrageous memorandum, then I think his faculties should be examined thoroughly before he continues to lead.

    On behalf of the Pulai UMNO Education Buraeu, I sent a resoultion to the UMNO Supreme Council through Mohd Ali Rustam, the then Vice President, not only on the issue of moral decedence among the Malays/ Muslims, but also gave clear suggestions based on successful models in non-Muslim countries on how to curb the indiscriminate sale of alcohol and the trade of the Muslim flesh primarily in places like Bukit Bintang and other cities in Malaysia. I guess they must have used it to wrap nasi lemak in Malacca.

    The answer may not all be in the punishment, it is in the prevention.


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