Thursday, February 16, 2017

Can non-criminal offences be punished more than criminal offences?

The first part of my post is merely revising stuff on syariah courts and the punishments they are currently permitted to award to Muslims found guilty of offending Islamic laws related to moral issues, such as khalwat, adultery, drinking alcohol, not fasting during Ramadan, etc.

Currently also, wakakaka, I am not subjected to Islamic laws on khalwat, adultery, drinking alcohol, not fasting during Ramadan, etc, because I am not a Muslim.

The syariah courts (currently) cannot trial a non-Muslim (theoretically anyway because in some cases involving marriages of Muslims and non-Muslim partners, they would ONLY for the reason some civil court judges abdicated their civil courts' rights of jurisdiction, but that's not the topic in this post).

The syariah courts in the Federation of Malaysia are only Islamic religious courts dealing with Islamic and non-criminal personal moral issues (call it religious and moral laws if you like) for Muslims only, generally on issues related to marriage, divorce, adultery, family issues such as death, inheritance, and custody of children, and are subject and subordinate to the civil courts.

Note above three highlighted points, namely syariah courts are:

  • are LIMITED to NON-CRIMINAL issues, and
  • are SUBORDINATE to the civil (secular) courts.

For example, they can't touch any criminal issues such as theft, trespassing, burglary, rape, paedophilia, assault and battery, violence, manslaughter, murder, let alone pass the death sentence or deal with high level issues such as those involving constitutional laws a la the proposed 'Federalisation' of Penang State.

That's indicative of the subordinate status of the syariah courts, much to the chagrin of uber Muslims like Hadi Awang.

(Currently) On punishing Muslim offenders of Islamic religious laws, the syariah courts CANNOT jail an offender longer than 3 years, nor fine him or her more than RM5000, nor cane the person with more 6 strokes.

That's the current limitations under ACT 355
of the punishments allowed to the syariah courts to pass on Muslim offenders of Islamic religious laws.

It's sometimes referred to as the 3-5-6 limitation.

Hadi Awang, president of PAS, has proposed a private member's bill to amend those limitations of 3-5-6 to allow the syariah courts to award increased punishments (if each state wants to take it up for their syariah courts as Islam is a state prerogative, but subordinated to the Federal Constitution Act 355, currently or amended as per Hadi Awang's Bill).

He has proposed for the syariah courts to punish Muslim offenders of its Islamic moral laws (note please: NOT criminal laws) by the following increases, to wit, from its current:

  • 3 years imprisonment to 30 years
  • RM5,000 fines to RM100,000
  • 6 lashes to 100 lashes of flogging

We've often been told that Islamic caning is compassionately constrained to the flogger raising his or her arm but without raising the elbow, and which punishment is meant to humiliate and humble, rather than being physically punitive (physically hurting or painful).

the infamous Qatif girl case in Saudi Arabia
a shiite raped victim (of sunni perpetrators) being awarded flogging
and threatened with increased flogging if she were to appeal

it took American political pressure before the King of Saudi Arabia stopped the punishments

Yet we now hear about Hadi Awang's bill seeking flogging to be humongously increased to 100 lashes.

If flogging is meant to humiliate and humble, rather than being physically punitive (physically hurting or painful), won't 6 still do?

Why 100 lashes?

I have to surmise the flogging will be horrendous.

OK, now refer to the MM Online article titled RUU355 amendments inhumane — Azimah Rahim which provides us with examples of the INHUMANE amendments:

Example 1: ... a single Muslim woman is raped and to prove her innocence she has to produce four witnesses who are male, Muslim and who have to meet stringent criteria that has been specifically laid down.

This is near impossible.

So since these near perfect men cannot be produced she will have been deemed to commit adultery with no room for her testimony to be heard.

BTW, just kaytee asking: What the f**k were those 4 'perfect men' doing while the woman was being raped?


So if those 4 were to present themselves as witnesses the first thing the (civil) court ought to do should be to find them guilty of being accomplices to the crime of rape. 

According to Hadi she will receive 80 lashes of the rotan. She will be as dead as a doornail. This is not justice.

The rape is criminal and CANNOT be dealt with by the syariah courts (wakakaka, suck on that) but alas the Muslim victim of a rape, if there were no 4 male Muslims who were witnesses to the rape, can be punished on moral issues such as adultery or khalwat, with punishments awarded being more than what the civil courts would award.

Another example Azimah provided is not relevant because Hadi Awang's bill does not including the punishment of stoning to death, so I will omit that here, but it needs to be said that will likely be what the uber Islamist clerics will want as the next step.
... I hope Hadi is happy and all fathers of daughters and husbands of wives share the joy.

Example 2: In another illustration, for the Muslim man who misses the Friday congregational prayers, Hadi demands he be imprisoned for 30 years. Oh joy! Deter by all means but not torture.

Non-Muslims must not remain silent because they may incorrectly believe Hadi Awang's proposed increased punishments for syariah courts to award do not affect them. That's only currently. They will be affected in the future if Hadi Awang gets his way. Non-Muslims have already been affected by syariah laws in some ways in the past and even now.

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