Model's caning case exposes flaws in Malaysia's two-track legal system

PUBLISHED : Friday, 24 July, 2009, 12:00am
UPDATED : Friday, 24 July, 2009, 12:00am

A woman's refusal to appeal against a sentence of caning imposed by an Islamic court for drinking a beer has highlighted the problematic nature of Malaysia's two-track legal system, with Muslim authorities unable to carry out the punishment without the co-operation of the prison authorities.

Prison officials have refused to act on the Islamic court's sentence because under civil law only men have been caned, never women.

'I respect the court's decision. I admit it's my offence and not that of others, it's not the offence of my parents or of my other family members,' said Kartika Sari Dewi Shukarno, a Singaporean model who was found guilty on Monday of drinking a beer at a resort last year. A sharia court in Pahang fined her M$5,000 (HK$10,950) and ordered that she be caned six times.

It had been expected that she would appeal against the caning. Although sharia courts are supposedly empowered to sentence Muslims to caning, no such sentence has ever been carried out in Malaysia at their request.

'We have never caned a woman, are not trained to cane women, we have no women as caners and we also don't know the Islamic way to cane,' a senior Prisons Department official said.

He said there is 'simply no system or process' in place to cane a woman.

Under Malaysia's two-track justice system, Islamic courts have no power to rule on matters relating to religion, if those involved are Muslims. In theory, they have powers to sentence offenders to up to three years in prison, a fine of up to M$5,000 and six strokes of the cane. Cases brought before them usually involve drinking or adultery.

Custodial sentences typically ranged from a week to a few months and were carried out in federal prisons, said Ragunath Kesavan, president of the Malaysian Bar Council.

'But this would be the first time caning has been meted out by the Islamic courts,' he said. 'We are all shocked and strongly oppose caning male or women offenders ... whipping is completely unacceptable.'

Civil courts, however, regularly hand down caning as a deterrent on male offenders. The punishment is carried out by specially trained prison staff in the presence of a doctor. The offender is tied to a vertical frame and caned on his exposed buttocks. Only one stroke is applied at a time with the remaining strokes applied after the wound heals.

Originally Malaysia's Islamic courts were a subordinate system under civil jurisdiction but were elevated to the status of 'parallel jurisdiction' with the civil courts in 1988.

Malaysian Sharia Lawyers Association former president Muhamad Buroh, a leading expert on Islamic law, said the case illustrated an urgent need to upgrade the Islamic court system and give it all the powers of the civil courts. 'This situation must be improved,' he said.

The association's deputy president, Musa Awang, said that the sentence should not be questioned because it was in accordance with Islamic law. He said the law prescribed that the cane used on women should not be more than 1.22 metres long and not more than 1.25cm thick and only 'moderate force' could be used.