Thursday, August 27, 2009

Kartika Sari Dewi and Whipping Sentence in Shariah Court

The decision made by the Kuantan Shariah Court on a part-time model who pleaded guilty of drinking liquour 2 years ago has stirred some controversies. The daily newspaper keep on airing opinions from minister to academics, lawyers and public alike but none of these opinions are based on their understanding of the law as well as religion. Some like Tun Mahathir questiones its legality. My dear Tun, of course it is lawful and constitutional. But I want to give my benefit of the doubt to His Lordship the Chief Syarie Judge of Terengganu who was quoted as saying that the decision is ultra vires and that Kartika can sue the Shariah Court. Knowing his background, I really wish that what appeared on the newspaper was not what he really said to the reporter. I don’t deny another quarter’s opinion and support for shariah court who urged the public to respect the decision of the judge. Even though the decision was seen as quite harsh, the benefit of this decision cannot be denied from several points of view. One: The publicity given to the case will highlight the offence so that the public are aware that it is an offence under shariah criminal law. What more, the whipping sentence in mandatory in two states that is Kelantan and Pahang. Two: the long overdue preparation and mechanism to implement the whipping sentence will soon be resolved. Until now, Kelantan is the only state in Malaysia that implement the whipping sentence for shariah offenders, particularly for those found guilty of drinking liquour and performing illegitimate sex. Other states are seen as quite reluctant to do so. I think the Home Minister need not look far, what more to exaggerate the matter. He and his batalion will only need to go the Pengkalan Chepa Prison Department in Kota Bharu to learn how the whipping is conducted. I was there once during my research and the prison warder demonstrated to me how it was carried out and how DIFFERENT it is from the civil method of whipping. I explained the difference between the two in my articles previously:

1. Siti Zubaidah Ismail, "Pengalaman Negeri Kelantan Dalam Melaksanakan Hukuman Sebat Rotan Terhadap Kesalahan Jenayah Syariah" (The Kelantan Experience in Implementing the Whipping Sentence for Shariah Criminal Offences) JURNAL SYARIAH, 12:1 [2004] 101-110

2. Siti Zubaidah Ismail “Wooing Whipping Sentence For Shariah Offenders” [2006] Shariah Law Reports, 35

The Fact and The Court’s Ruling of the Case
About a year ago, Kartika was detained by the Religious Enforcement Officers at Cherating Bay Lounge, Hotel Legend, Cherating, Kuantan in 11th July 2008 in a raid around Kuantan district to check on mUslim drinking intoxicated drinking. The raid was joined by the Royal Malaysian Police (PDRM), Kuantan Municipal officers and the District of Kuanatan Officers. During investigation at the premise, at about 11.40 p.m. Kartika was found drinking Tiger Beer. It was found that a jug and three glasses were in front of her.
She was charged at the Kuantan Lower Shariah Court on 15th July 2008 and was released ona RM1000 bail pending mention at the Shariah High Court where the case will be tried because it is within the High court jurisdiction. The first mention was scheduled on 21st October 2008 but the case was postponed to 1st December last year.

On the first day of December 2008, the charge was read and made understood to the accused (Kartika Sari). She understood what had been charged against her and she pleaded guilty. The accused also knew and undertood the nature and consequence of her guilty plea. With the plea, the Court was satisfied and subsequently convicted her with drinking intoxicated drink, an offence under section 136 The Administration of Islamic Law and Malay Custom Enactment 1982 (Amendment) 1987 which reads:

Sesiapa yang minum arak atau sebarang minuman yang memabukkan yang tidak boleh dikenakan hukuman hadd mengikut Hukum Syarak adalah bersalah atas suatu kesalahan dan boleh, apabila disabitkan, dikenakan hukuman denda tidak melebihi lima ribu ringgit atau penjara selama tempoh tidak melebihi tiga tahun atau kedua-duanya dan disebat enam kali.

The punishment was not pronounced yet by the Court. On 12th January 2009, the accused appointed a Syarie Counsel to mitigate on her behalf and the court decided to hear her mitigation on 4th May 2009. However, the Prosecution Officer applied to the court to submit a written submission as well as a proposed sanction. The Court then decided the new date which was 20th of July 2009.

In her mitigation plea, she requested not be imprisoned or caned and she DID ask for the maximum fine (now you should know why the court granted the maximum fine. It was her wish.). Imprisonment or caning will cost her job and the future will be uncertain. She would also be deprived from her family and daughters if she were to be sent to prison. The Court agreed with that and therefore imposed on her the RM5000 fine. After all, the imprisonment can alternate with fine.

As for the whipping, it is a mandatory sentence. The provision under section 136 as pointed above, uses the word “dan”(and) not “atau” (or) and therefore, the court had no choice. It is worth mentioning that drinking liquour is one of the hudud crime and the offence is punishable with 40 lashes (during Prophet’s time) or 80 lashes (during Saidina Umar r.a as a Caliph). The punishment is hopefully will deter others form committing the hudud crime as it it is the crime against Allah’s right. The punishment shows justice for all by not differentiating between male or female offender. This is justice, ladies and gentlemen and the Minister.