[Malaysia] Caning for Boozing

The New Straits Times, Kuala Lumpur
15 June 2005

CANING FOR BOOZING: Two get six strokes and 5,000 fine each
Report by Shahrum Sayuthi and Aniza Damis

For possibly the first time, Muslims convicted of drinking alcohol in public have been sentenced to caning. Brothers Mohd Nizam Ibrahim, 32, and Mohd Nasha, 30, were sentenced
to receive the maximum six strokes of the rotan and fined RM5,000 each by the Syariah High Court here.

They were caught drinking stout at a restaurant in Jalan Bukit Ubi here on Aug 19 last year. Under Section 136 of the Islamic Religious Administration and Pahang Malay Tradition Enactment 1982 (Amended 1987), they could have been jailed up to three years.

The imposition of the caning penalty caught everyone by surprise in court today, including the brothers, who had pleaded guilty to the charges, believing that they were going to be let off with a fine.

Judge Abdul Rahman Yunus said the sentence he meted out should serve as a reminder to all Muslims not to commit the offence.

"The excuse given by both offenders, that they are in the lower income group and, therefore, should not be severely punished, is unacceptable," he said.

"It is quite obvious that the alcoholic beverage they drank is more expensive than other drinks such as syrup."

The brothers — factory workers — were detained in an operation by the Pahang Islamic Religious Department to discourage Muslims from drinking alcohol. A team of department officials, accompanied by policemen, arrested the brothers at the Yi Huat Restaurant in Jalan Bukit Ubi at 11.32pm.

Lawyer Che Mastuni Muhammad, who represented the brothers, immediately asked the court to suspend the sentence pending an appeal to the Syariah Appeal Court. The court granted bail of RM1,000 in one surety for each brother. Prosecution was done by Syariah deputy prosecutor Abdul Rafli Malek.

One issue arising from this decision is how the caning will be carried out. "There are no rules or provisions for how the caning should be done," said Malaysian Syariah Lawyers’ Association president Muhamad Burok.

"So how is it going to be executed? What type of rotan should be used? How thick or long should it be? Which part of the body should be caned? How should the caning be done? How high should the cane be lifted?

"Caning the Islamic way is different from the civil law way. And, for the moment, there is no regulation on how it should be done."

In Islamic law, he said, the cane should not be thicker than the little finger on the hand, and the cane cannot be lifted so high that the upper arm is lifted away from the armpit.

"In this instance, I would say that the act of imposing this punishment is premature because the method of caning has yet to be set," Muhamad said. He added that this was the first time in Syariah Court history that the caning penalty had been handed down for this offence.

Senior Syariah lawyer Kamar Ainiah Kamaruzaman said even if there were no provisions in law for how the caning should be executed, the judge could give specifications for it. "There is a provision in Syariah law that states that punishments should be carried out in accordance with hukum syarak (Islamic provisions). The judge could make the interpretation for this and give directions on how it should be done.

"If the judge gives directions based on this provision, then it would be legal," she said.

Until now, she said, caning had only been imposed on those people who committed zina (adultery) in Kelantan.