KUALA LUMPUR, Aug 23 — Syariah and civil law experts are disputing an additional detention order to enable Kartika Sari Dewi Shukarno to be whipped this week for drinking beer, calling it double jeopardy even as the mother of two is demanding a public caning.
Terengganu Chief Syariah Judge Datuk Ismail Yahya said the order to put the former nurse in prison to be whipped is ultra vires and opened the authorities to a legal suit.
“Kartika can sue. This is because her detention, and subsequently the whipping, is illegal,” he told the New Straits Times a day before she has to surrender herself to the authorities at Kajang Women’s Prison to receive six lashes of the rotan for consuming alcohol.
She was fined RM5,000 and given six lashes but no jail sentence by the Pahang Syariah Court after pleading guilty to the offence committed on July 12, 2007, at a nightclub in Cherating. Under the country’s dual track system, only the Prisons Department can execute corporal punishment but its rules say that only a prisoner can be whipped.
“The only way for her to end up in jail is if she doesn’t pay her fine. But from what I understand, she has paid it.
“So, this means that there is no way that the whipping sentence can be executed,” said Ismail.
The 32-year-old and her father have demanded a public whipping to serve as an example for other Muslims but Malaysian laws have no such provisions. Civil rights group say corporal punishment is abhorrent and against human rights.
Pahang syariah deputy public prosecutor Saiful Idham Sahimi applied for a warrant of arrest last Tuesday to detain Kartika in prison for seven days to carry out the punishment and it was approved by Pahang Syariah High Court judge Datuk Abdul Rahman Yunus, who had sentenced Kartika to the initial punishment.
But Ismail said neither the judge nor the DPP were following procedures as the prosecution should have filed for an appeal to a different judge to ask for a jail sentence to enable the whipping.
The syariah judge said he had raised the issue with other judges and legal officers.
“What we want to achieve is justice, not just trying to mete out punishment.”
Senior civil law lecturer Professor Shad Saleem Faruqi agreed with Ismail.
“We’ve got a lacuna, that is the person who is to be whipped must be jailed. According to the law, nobody can be deprived of his life or liberty, except by the law. In this case, the law came to an end when the trial ended,” Shad said.
He pointed out that in giving out the detention order, the judge had imposed a second sentencing.
“The judge imposed only two punishments. He cannot now turn around and impose a third punishment. This is illegal. It’s almost like double jeopardy.”
Shad also quoted Article 7 of the Federal Constitution which states that if a person has been convicted of an offence, he or she could not be tried again for that offence.
“Kartika was not sentenced to jail initially. It would be unjust for the court to impose a new penalty.
“Only the Syariah Appeal Court can deal with this matter now. So, the DPP should appeal to have the sentence increased. But the judge of the first instance should not be increasing the sentence himself. That is wrong,” Shad said in an interview with the New Straits Times.
Although in Islamic jurisprudence it was permissible for a syariah judge to rectify an error himself, Shad said that was not the case with the Malaysian legal system. Anything that involved the prisons came under federal law.
However, Islamic Development Department (Jakim) legal adviser Mohd Zulbahrin Zainuddin refuted the idea that the warrant was an additional sentence, saying it was just to require Kartika to turn up at the prison for sentence to be carried out.
“Kartika will just be detained. The prison is just a place for her to wait,” Zulbahrin said, pointing out that Kartika had not appealed the conviction and sentence.
According to Zulbahrin, Section 125 (4) of the Syariah Criminal Procedure Act 2002 allowed the court to order her detention.”If Kartika wants to object, she has to go to the Syariah High Court and file an appeal. Since she has not done so, it is considered a straightforward case.”
But Shad said what was planned for Kartika seemed to be neither detention nor a jail sentence as a person detained on suspicion of committing a crime is held in a remand centre, while a convicted person is held in a prison.
“There are only two types of detention: remand and prison. “It can’t be remand because Kartika was convicted. And it can’t be imprisonment because she was not given a jail sentence.”
Shad said since the whipping sentence could not be executed, the courts should give Kartika the benefit of the doubt. He also urged the prison authorities to express their inability to do the whipping and said it was “morally reprehensible” to use Kartika’s punishment as a lesson for other Muslims who might consume alcohol in public.
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