Sunday, August 23, 2009

After 'ultra vires' comes 'lacuna'

The Malaysian Insider’s Legalities complicate Kartika’s caning refers to the case of Kartika Sari Dewi Shukarno who was to be whipped this week for drinking beer.

Kartika Sari Dewi in Indonesian means the ‘goddess of the essence of the star’ (wow). And with such a name perhaps she has been protected by a Higher Being.

Syariah experts have discovered a lacuna in the court’s punishment decree against her, which may possibly prevent the authorities from caning her.

By the way, in case any Utusan reporter is reading this, ‘lacuna’ does not mean any insult to Islam, DPM Muhyiddin or Rais Yatim wakakaka.

According to Terengganu Chief Syariah Judge Datuk Ismail Yahya, and supported by senior civil law lecturer Professor Shad Saleem Faruqi, Kartika was fined RM5,000 and given six lashes by the Pahang Syariah Court for the offence of yamseng-ing on 12 July 12 two years ago at a nightclub in Cherating but no jail sentence.

In Malaysia only the prison department and no one else may cane a prisoner.

As Kartika wasn’t sentenced, she is not a prisoner, thus she needn't go to prison. Therefore how is the authority going to cane her?

Well, according to the Malaysian Insider, Islamic Development Department (Jakim) legal adviser Mohd Zulbahrin Zainuddin unsurprisingly asserted it requires just a warrant to require Kartika to turn up at the prison for sentence to be carried out.

He mumbled unconvincingly: “Kartika will just be detained. The prison is just a place for her to wait. 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.”

Not so, said Professor Shad Saleem Faruqi, arguing that a detention order (via a warrant to detain) is in fact a second sentencing, i.e, an additional penalty to the caning and RM5,000.

And as Kartika has paid the RM5,000, she can’t be jailed in lieu.

But she can’t be cane unless she is jailed. And she can't be jailed as there's no jail sentence imposed on her - the 'lacuna' that Professor Shad mentioned.

“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.”

“The judge imposed only two punishments [i.e. RM5,000 and caning]. 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 explained: “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.”

Terengganu Chief Syariah Judge Datuk Ismail Yahya warned Jakim that the whipping will be ultra vires [any Utusan reporter around? Wakakaka] and opened the authorities to a legal suit.

He advised: “Kartika can sue. This is because her detention, and subsequently the whipping, is illegal.”

For those Utusan reporters and Islamic Development Department (Jakim) legal adviser Mohd Zulbahrin Zainuddin, I say not ‘lacuna’ nor 'ultra vires' but:

Alhamdulillah Allahu-Akhbar


  1. What's the hype? Its Hudud. So one way to make sure we wipe out the malay muslims here is by voting PAS. With hudud many of them will be without limbs and stone to death.So next GE lets vote for PAS then we can yamseng to no limit.

  2. God moves in mysterious ways. Amen!

    We are al of 1 race, the Human Race

  3. KTemoc,
    Permission to copy this article

  4. At least we now know there are some that are well learned, diligent and wise to syariah and civil laws.

  5. Hey, as a Non-Muslim , you might be accused of insulting Islam by those whackos for uttering those Islamic phrases.

  6. Hey, as a Non-Muslim , you might be accused of insulting Islam by those whackos for uttering those Islamic phrases.

  7. well said KT! Your closing islamic greetings say it well. There's no insult on Islam at all. Allah is great and thanks are indeed due to Allah for those two alert legal eagles for pointing out the law as it should be.

    sri hartamas

  8. DontplaypundekFoe12:32 am, August 24, 2009

    This guy Dontplaypundek, may I suggest not to waste too much ammunition on him. I have challenged him a few times in Unspinnersdotcom before, but he prefers to mock and counter-pundek the malay writers with less verbiage instead.

    Yes I agree with your analysis. He would come in to blogs who dont conform to his view of GOMEN-ALWAYS-WRONG and spew his venom. And then when people retaliate (and he would, surprisingly, do this in many, many blogs --- as though he has a crusade that he is carrying on) by calling him names, he would then go up the moral high-ground of "Why are you malays always vulgar" kind of argument. But when he sees the malays being vulgared elsewhere, like in MT or such spots, his moral high ground disappears into silence.

    Yes, it's kind of like applying the "We are all 1 human race" slogan only to people that he thinks he wants to make points about but never to the pariah-dalit-brahmin hodge-podge society that his father/grandfather had belonged to.

    Warrior 231: you fight injustices done to your brethrens in both religion and race, and not so much UMNO, BN, PR-partisan based. That makes you and me brothers, and I am sure there's a lot more like minded people here. Write on, and Fight on. We are behind you.


  9. Donplaypukis

    We are al of 1 race, the Human Race

    Talk cock arsehole , if you walk your talk , go and get yourself canned six strokes of the rotan on her behalf , otherwise stuff your mouth with cow dung donated free of charge from kampong buah pala .

    Mai pundek cow hole tambi .

  10. Donplaypundek afraid to take on warrior , not here , not now , not anywhere , not forever . no lampah , no pisang . Got guts see you in Rocky's bru .

    pordah pundek tambi donplaypuki.

  11. God moves in mysterious ways. Amen!

    Lunas assemblyman Radzhi quits as PKR member (Update)

    Kedah MB: Radzhi will be sacked as exco, with PKR’s consent, if he does not go voluntarily

    KUALA LUMPUR: Lunas state assemblyman Mohd Radzhi Salleh announced Sunday he had quit Parti Keadilan Rakyat (PKR) to become an independent member of the Kedah legislative assembly.

    Mohd Radzhi, who is chairman of the Tourism, Community Development and Human Resources Committee, said he would retain the post of state executive councillor as the appointment was made by the Sultan of Kedah.

    His decision to leave PKR was due to a loss of confidence in the PKR leadership and in keeping with the dissolution of the PKR Padang Serai division announced by division acting chief Jamaludin Abu Hassan who himself had quit the party, he told a news conference also attended by Jamaludin.

    "As an elected representative, I sympathise with the decision to dissolve the division because the divisional members were responsible for my victory in the last general election," he said.

    In the general election last year, Mohd Radzhi beat the Barisan Nasional candidate, S. Ananthan, by a majority of 10,323 votes to win the seat.

    Mohd Radzhi said 14 divisional committee members and 200 ordinary members supported the dissolution of the division.

    "I am no longer prepared to be in PKR because I feel responsible, along with the members and, as a divisional committee member, I am leaving the party in support of the decision," he said.

    Mohd Radzhi said he would continue to serve as an independent state assemblyman and support the federal government led by Prime Minister Datuk Seri Najib Tun Razak.

  12. Hey donplaypuks
    Your grandfather say you cannot go to heaven to join him because you say " God moves in mysterious ways. Amen! " So where got " We are all of 1 race, the Human Race " then you can join him , how can cannot eh ?

    Nik Aziz stands by his remarks

    KOTA BARU: PAS spiritual leader Datuk Nik Abdul Aziz Nik Mat will not retract his recent remarks about Umno and instead is threatening to sue newspapers which allegedly twisted his words.

    “I will stand by this statement,” he said, adding that he was not the type to change his mind even if he was under tremendous pressure to do so from all quarters including Islamic scholars.

    “I will never take back my words,” he told reporters after handing over undisclosed amount in Ramadan cash handouts to 60 people at the Kota Darul Naim Mosque here Sunday.

    Nik Aziz, who is also the Kelantan Mentri Besar, was asked to comment on the appeal by Pasir Mas independent MP Datuk Ibrahim Ali for him to withdraw his statement for the sake of the Kelantanese people.

    Last week, Nik Aziz came under heavy fire from all quarters after he reportedly said that Umno practised Islam that was false and secular and those who supported Umno would not get to heaven.

    He said this was based on the fact that Muslims who separated Iman (faith) from Islam would not go to heaven, adding that the two were inseparable, just like the body and soul.

  13. It is already stinky enough when the polis was caught manufacturing evidences.

    And now we have a judge in collaboration with jakim manufacturing their own laws and punishments.

    How come the son of nazri and KJ are safe from alcohol offenses?
    But Kartika Sari Dewi have to go thru it .

  14. How come the son of nazri and KJ are safe from alcohol offenses?

    Anwar Ibrahim was also photograph holding a glass of beer ?

  15. come on, when there's this law enshrined to cane drinkers, why not to exercise it. is this act/statement just for decoration? just let the pahang court metes the punishment for the sake of justice and stern warning to other offenders.

    we have to learn to respect the law, if you don like ask your MP representative to strike out this law then ....

  16. All you don imitators who lack any semblanceof originality,

    Whoa, such champions to ask me to take on Warrior 231 in Rocky's blog, especially when Rocky nicely and politely asked all for restraint from obscenities in the month of Ramadan and you guys have no respect for that? Muahaha!

    Gutless wonders! Start your own blog and I'll see you there. And then we'll see how liberal you are in allowing comments and views you don't like or agree with! What are you afraid of?

    And don't you worry your tiny little racist minds abou me going to heaven or hell. I am grateful for little mercies that it is my God who will take care of that and not you bigoted lot who hide behind Warrior's skirts with 'you lead the way bro, we are right behind you' like generals who send soldiers to their deaths! Heh, heh, heh!

    Nik Azizi has told you clearly that you won't go to that place of your secret desire and that should be of concern to you, not me! Ke, Ke, Ke.

    We are all of 1 race, the Human Race

  17. We are all of 1 race, the Human Race

    Are you from the monyet race ? or sub human race ? muahahahaha

    This Pariah cow herd is good at talking cowshit . Muahahaha

  18. donplaydumb

    Monkeys have a race? Not that any human knows of. So, what does that make you? Muahaha!

    You are incapable of debating the blog topic, so all you can talk of is 'pariah' and 'shit' which is all you know about? That's why you have 'dumb' in your name, I suppose. Ke, Ke, Ke!

    We are all of 1 race, the Human Race

  19. Is "human" a race? Is there a human race? I wonder.

  20. Anon 12.55 p.m.

    Good question. But, do you doubt it?

    Barring defective instances, is any human child born anywhere in this world without the standard DNA, chromosomes, organs, body and structure, with differences to separate the sexes?

    By the same token, is any child born anywhere in this world with ash on his forehead, a cross on a chain around his neck, yarmulk on his head or holding any Holy Book?

    Genetics variations among the different 'races' is less than 6%! Much of our understanding of 'race' is based on clolour and nothing else! Religion is not relevant to 'race' however we may draw up definitions.

    We are all of 1 race, the Human Race

  21. Sorry ktemoc for taking up so much space here, but I thought Anon 12.55 and others might find it interesting and provide some answers:

    "There is no scientific consensus of a list of the human races, and some anthropologists even question the notion of human "race". [92]

    For example, a color terminology for race includes the following in a classification of human races: Black (e.g. Sub-Saharan Africa), Red (e.g. Native Americans), Yellow (e.g. East Asians) and White (e.g. Europeans).

    In June of 2009 the United Nations changed their charter which was reflected in their Durban Review Conference global summit on combating racism, which now states:

    "6. Reaffirms that all peoples and individuals constitute one human family, rich in diversity, and that all human beings are born free and equal in dignity and rights; and strongly rejects any doctrine of racial superiority along with theories which attempt to determine the existence of so-called distinct human races."

    Thus the United Nations will no longer use the word "race" as a cultural determinant; instead, we will all be considered a part of one race: humans.[93]"

    For those interested in reading the detailed article from which the above quote was extracted, please go to:

    We are all of 1 race, the Human Race

  22. KT,

    dont make fun of Utusan reporter lah. its alreadi bad enough for the public to know how stupid the reporters (from utusan) are. its a real slap and affront to their dignity if you keep on making fun of them. pls lah.