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The Joint Action Group for Gender Equality (JAG), Suara Rakyat Malaysia (SUARAM) and National Human Rights Society (HAKAM) are gravely concerned that the Pahang Syariah Court of Appeal had heard and decided the revision of Kartika Dewi Shukarno’s (Kartika) sentence of whipping without all the relevant stakeholders in attendance to present arguments, or the public being informed of the hearing.

Furthermore, on 18 September 2009, Sisters In Islam (SIS) had filed a separate application for revision and stay of execution of Kartika’s whipping and this application has yet to be heard by the Pahang Syariah High Court.

We are also puzzled at the speed with which the Syariah court is intent on carrying out the sentence when many civil society organisations and prominent individuals and scholars have expressed doubt as to the propriety of the maximum sentence of RM5,000 fine and six strokes of whipping imposed on Kartika, a first offender, who had pleaded guilty and expressed remorse on many occasions.

We are concerned that the Syariah Court is taking to heart to statements made by the Minister in the Prime Minister’s Department in charge of Islamic affairs, Maj-Gen (R) Datuk Jamil Khir Baharom (“Syariah court to have more bite”, NST, 24 April 2009) that the lack of implementation of the sentences of whipping “is the contributing factor to the increase in syariah-related crimes each year as the people think the laws too trivial.” The Minister is incorrect in relating the lack of whipping to an increase in “syariah-related crimes” as studies have shown that whipping, like capital punishment, is not an effective deterrent to the commission of crimes.

The fact that Kartika herself seems intent on being whipped should not prevent the authorities from doing what is just and compassionate in all the circumstances of the case. As human rights defenders, we are committed to securing a treatment for her that protects her human rights and the human rights of others in similar circumstances, and to ensure that there is no deterioration of human rights standards in Malaysia.

Kartika’s decision may be compared to the decisions made by Hindu widows in the past. The practice of ‘sati’ (now outlawed in India) meant that widows were burnt on the pyres of their deceased husbands. There were arguments that if a widow chose to immolate herself then there should be no interference. Clearly this is not a practice that should be condoned on the principle of free choice.

The important issue here is the deterioration of human rights standards as applied by the state of Pahang. If the whipping of a woman takes place under Syariah law, a bad precedent is set in Malaysia – especially when women are expressly excluded from being whipped under S289 of the Criminal Procedure Code.

If Kartika is whipped, the perception of Malaysia as a moderate Muslim state will be permanently jeopardised.

We urge the Federal and State Governments to review whipping as a form of punishment as it violates international human rights principles which regard whipping and other forms of corporal punishment as cruel, inhuman and degrading treatment.

In Kartika's case, we are especially concerned that general principles of sentencing were not applied: she was a first-time offender, she showed remorse and pleaded guilty, and there was no violence in the commission of the offence. Her sentences were completely disproportionate to the offence committed.

We further urge the Federal and State Governments to conduct a comprehensive review of all laws pertaining to Syariah criminal offences, with a view to repeal such laws. In 1997 and 2005, SIS submitted memorandums to the Government on Syariah criminal offences, raising several issues of concern including the fact that several provisions in the laws have no basis in Islamic legal theory and practice, conflict with the Federal Constitution and conflict or overlap with the Penal Code and other federal laws.

Finally, we remind the relevant authorities that justice must be tempered with compassion; and that justice must not only be done, but must be seen to be done so that Malaysians can be confident of the processes in the Syariah courts.

Issued by:
1. The Joint Action Group for Gender Equality (JAG) which comprise Sisters in Islam (SIS), Persatuan Kesedaran Komuniti Selangor (EMPOWER), Women's Aid Organisation (WAO), All Women's Action Society (AWAM) and Women’s Centre for Change, Penang (WCC);
2. Suara Rakyat Malaysia (SUARAM); and
3. National Human Rights Society (HAKAM)

30 September
Kuala Lumpur