M. Bakri Musa
It took a diminutive but courageous 32-year-old nurse and mother to expose
what has been obvious to many but conveniently ignored: a grossly unjust
and frankly hypocritical Malaysian Shari'a court system.
Subjecting a first offender – and a young mother at that – to six lashes
of whipping for drinking beer in public cannot be considered a "just"
punishment. Bluntly put, it is barbaric. And if something is not just,
it cannot be Islamic. It is that simple. I wonder if those advocates
for caning could tell me under what of the 99 attributes of Allah would
caning a young mother fall under. Certainly not Ar Rauf (The
Compassionate) or Ar Raheem (The Most Merciful)!
A Profile In Courage
Kartika Sari Dewi Shukarno is truly a profile in courage, a genuine
heroine. She did not seek out to be one; the circumstances could easily
have tuned her into an angry rebel, or worse.
She succeeded by adhering to our traditional halus (soft)
ways. She did not challenge the system; on the contrary she freely
admitted to her error and accepted her fate, just like a good obedient
Malay daughter was taught to be. She asked only that the whipping be
done in public so others could learn from her mistake. How noble and
touching!
By those seemingly meek actions she exposed the hypocrisy of
the Islamic establishment, and did so far more effectively than all the
shrill voices of those in Sisters-in-Islam and other vociferous advocates
for reform. More significantly, her Gandhi-like passivity is now noticed
by the world.
Thus far what seems to get whipped is the image of Malaysia as
a modern tolerant Islamic country. Her submissiveness, reflecting her
Islamic faith (Islam after all means 'one who submits'), also rattled
Prime Minister Najib and Women's Minister Sharizat. It is hilarious if
not pathetic to see them scurry for cover.
In urging Kartika to appeal despite having her appeal period
lapse, both Najib and Sharizat must feel confident that the sentence
would be reversed. What however, if it were sustained? Their utterances
imply that they could influence if not control the Shari'a Appeals Court's
decision. That is a scary thought. It bears pointing out that Kartika
was sentenced by a court in Pahang, Najib's home state. Meanwhile
Shahrizat is bewildered as to why Kartika refused to appeal. The poor
Women's Minister still has not figured it out.
Home Minister Hishammuddin too joined in with his share of
idiocy. When Kartika presented herself to jail for the planned whipping,
she was turned away as the prison, under Hishammuddin's portfolio, was not
prepared to carry out the sentence!
The idiocies did not stop there. The Chief Judge of Pahang's
Shari'a Court of Appeal ordered a deferment and review of the sentence
"in the interest of justice." Left unstated was under what statute his
order was made. Then there was the Federal Attorney-General also
intervening, obviously not realizing that Islam is strictly under state
jurisdiction.
There are those who would like us to believe that the
'Islamic' version of whipping is not at all cruel. The association of
Shari'a lawyers and an umbrella group of Muslim NGOs maintain that
"caning, in the context of Muslim punishment, is for the purpose of
education and is different from the penal nature of some provisions in
the Common laws and the civil courts." Let's 'educate' them!
Presumably the 'Islamic' whipping is closer to the S&M
variety. Kartika is assured that she would not be stripped but allowed
to wear her baju kurong. How thoughtful! Perhaps they could supply her
with a black leather one; she just might like the whipping.
The Perak mufti opined that Kartika should be grateful as she
would receive only six instead of 80 lashes that the mufti himself would
impose and, I presume, like to administer personally. Thanks to the
mufti's advice, Kartika has now accepted her fate with equanimity, if not
his blessing.
In the ensuing furor, the sentence was deferred, "in the
spirit of Ramadan!" The piety of these folks is truly touching.
Presumably once Ramadan is over, and the furor subsided, the whipping
could begin. What is obvious is that the deferment was a relief not for
Kartika but the establishment, a chance for them to recover from their
collective shame and stupidity.
Expansion of Shari'a
In the past, the Malaysian Shari'a was restricted to family
laws with such mundane matters as inheritance, divorce, and adoption. As
part of Mahathir's move at "out Islaming" the opposition PAS, the Shari'a
was granted greater jurisdictions such that today it is on par with the
secular system, as well as extending into civil and criminal matters.
Malaysia prides itself in being the only nation with a unique
dual-track justice system that coexists harmoniously. Both assertions
are erroneous. Canada also has a dual judicial system, with Quebec
following "civil law" based on the Napoleonic Code and the rest
subscribing to common law of the English tradition. However, the
Canadian Supreme Court has final authority over both.
As for the harmonious part, Malaysia has yet to resolve the
often conflicting jurisdictions of the two systems. It is not at all
clear whether the country's Federal (Supreme) Court has jurisdiction over
the Shari'a courts, which gives a special Malaysian meaning to the word
"Supreme." Many maintain that it does not, which makes a mockery of our
constitution. This unresolved issue has consequences, often
heart wrenching, as demonstrated in many recent well publicized cases.
As the Shari'a now also has criminal jurisdiction, Malaysians
are inherently not treated equally under the law; their fate depends not
on the crime but their faith. A non-Muslim man caught committing
adultery faces only the wrath of his wife, and possibly her vicious
divorce lawyer. A Muslim man however, could be whipped, the same
'Islamic' whipping that Kartika would face. Now imagine the
complications if one partner is a Muslim and the other, non-Muslim.
There are other distressing inequities if not outright
hypocrisy. While Kartika would be whipped for drinking beer in public,
the Muslim directors of beer companies – the manufactures and pushers, in
the language of the drug culture – are honored. I also do not see the
Shari'a going after ministers and sultans running away from their
gambling debts.
All these would have remained hidden had it not been for
Kartika. We owe her an immense debt of gratitude for exposing this
flawed and misguided system. She has done her part, but I do not see the
nation doing its share. Instead we are consumed with the minutiae of her
caning and ignore the huge elephant in the room: a hypocritical and an
unjust Shari'a that is ill suited for our needs.
Muslims confuse the concept versus the content of Shari'a.
The concept – Shari'a being a body of laws based on the Quran –is
accepted by all. It is a matter of faith; no disagreement there. The
contents however are the products of human interpretations. As such it
suffers from all the imperfections inherent in such endeavors. It also
results in the Shari'a of the Shiites being very different from that of
the Sunnis, as well as variations within the Sunni Fighs.
The corollary is that the content of Shari'a can be debated. These
discussions must necessarily involve all stakeholders, not just the
scholars and ulamas, a point emphasized by Abdullahi An Naim in his book,
The Future of Shari'a. He suggests that Muslims revisit the Shari'a using
the same rigorous intellectual tools used by earlier luminaries while
cognizant of today's universally accepted norms of constitutionalism,
gender equality, and human rights, among others.
If that is too ambitious, begin with a more modest one. Get rid of the
unjust elements in our Shari'a, like whipping women, and the grossly
"un-Islamic" elements in our secular laws, like jailing citizens without
affording them due process.
That is the crux of the issue, not caning. Thanks to Kartika, she is
forcing us to face this reality squarely. She gently stared at the
system, and it blinked.
----------------------------------------------------------------
This e-mail has been sent via JARING webmail at http://www.jaring.my
No comments:
Post a Comment