Sunday, February 21, 2010

In Defense of Sharia Canings in Malaysia: 'The Objective Is Not To Inflict Physical Pain'

The following is a defense of the recent caning of three women in Malaysia under Sharia law. I believe that it requires absolutely no comment whatsoever. The author is a Malaysian lawyer.
(source: New Straights Times, February 22, 2010):

'The objective is not to inflict physical pain'


By Fakihah Azahari

"ISLAMPHOBIA" has once more reared its ugly head in Malaysia.
Following the recent caning sentences meted out against three women by the Federal Territory Syariah High Court for illicit sex, third parties have come to the defence of these women, with one group claiming that the caning constitutes a discriminatory act against women in general and another describing the act as "anachronistic and inconsistent with a compassionate society".

Despite the overwhelming support of these groups against the sentencing pronounced by the Syariah Court, the three women remained consistent and steadfast in their stance to undergo the sentences to recompense for their deeds.

An earlier sentence handed down for the offence of consumption of alcohol by the Pahang Syariah High Court against parttime model Kartika Sari Dewi Shukarno (but yet to be carried out) have also been heavily criticised. Like the three women in question, Kartika had decided not to appeal against the sentence and had expressly stated her willingness to submit to the sentences. All efforts by third party groups to demonise the caning sentences have been brought to a halt by the unwavering stand taken by the women to submit themselves to syariah law.

As the women narrated soon after experiencing the sentences, they were driven with an inner self desire to expiate themselves from their sins so as to find acceptance from God, their families and society at large. Relieved from their burden of guilt, they may move forward to chart a better future for themselves with a clear conscience.

Whether one agrees or disagrees with the Syariah High Court decisions, one issue is manifest. The decision of the women in question to submit themselves exclusively to the jurisdiction of the Syariah Court shall have to be respected and efforts by third parties to dissuade them otherwise may be rather mischievous.

The due process of the Syariah Court system in Malaysia is well supported by the necessary infrastructure and cannot be compared to the Syariah Court system practiced in other Muslim countries.

Cases that occur in other Muslim countries that portrayed a flawed system of laws may have influenced the image of our Syariah Court system negatively. One example is the case of Amina Lawal, a woman accused of and convicted by the Nigerian Islamic Court for the crime of adultery in 2002. The conviction was seriously tainted by a flawed due process of law that prompted Amina to seek assistance from international organisations. The Nigerian Court of Appeal later found conclusive proof of the miscarriages of justice and Amina won her appeal. Our syariah law system, on the other hand, has displayed a proper and fair due process of law to the extent that the women convicted by the Syariah High Court, did not speak against the sentences or exercise their rights to an appeal, although they were at liberty to do so.

The enforcement of caning under the Syariah Court system is distinguishable from the mode of caning enforced in the civil court system which is known to be painful and severe; in that its objective is not to inflict physical pain but to produce an awareness of the consequences of one's wrongdoings and a solemn desire to right things. The women attested that they felt no physical pain and this fact was witnessed by the various parties who were present at the sentencing.

The jurisdiction and powers of the Malaysian Syariah Courts to deal and dispense with syariah matters are deeply entrenched in the Malaysian Constitution. It is a system of laws that exists side by side with the civil system comprising of legal infrastructure of equal standing as present in the civil court system. Once we overcome our 'Islamphobia', perhaps we may be able to understand the philosophy and workings of syariah laws and view syariah issues in an objective and unbiased manner.

The writer is attached to the Malaysian Muslim Lawyers Association.