Terengganu lesbian caning case alarming - exposes grave flaws in shariah legal process

FMT - The real problem with the Terengganu caning case by Sahid King (a FMT reader):

There has been heated discussion about the recent public caning in Terengganu, but I believe too much emphasis has been placed on the punishment itself. Almost entirely overlooked is the fact that the case should never have proceeded to trial.

I do not think the real problem here is caning which, after all, exists in the Penal Code as well and is not exclusive to the shariah courts. Indeed, caning carried out by shariah courts is notably less severe than that carried out by the criminal courts. I imagine anyone today serving a prison sentence of any period of time would prefer to have been tapped on the back with a stick a few times and allowed to go home. The problem is, very basic standards of evidence and due process are not followed in the shariah system.

If the dual jurisdiction system is to work, and if the shariah courts are empowered to imposed punishments of up to three years’ imprisonment, RM5,000 fine and six strokes of the cane, they must adhere to acceptable evidentiary standards and norms of due process.

As we are discussing an Islamic justice system, I am talking about basic Islamic standards derived from religious texts and from the long record of Muslim jurisprudence. This case shows that these standards are not consistently met.

We can begin with the fact that there is no evidence in the sources of shariah that lesbianism is a crime worthy of punishment at all. Classical legal scholars viewed sexual activity between women as socially inconsequential, likening it to masturbation – a private matter that was not penalised under the law. So from the start, this prosecution had no legitimate basis in the shariah.

Even if we accept some sort of discretionary rationale for the shariah criminalisation of lesbianism, it is difficult to accept a category of offence called “attempted lesbianism”. Under Islamic law, anything that falls short of actual penetrative intercourse is not a punishable offence. If sexual relations between women are to be treated as an equivalent of adultery or sodomy, then of course the shariah rule requiring four witnesses to the act would apply. In the absence of an act, the shariah does not delve into the unknowable realm of “intent to commit”.

If we set all of this aside – and it is a lot to set aside – we are still left with serious flaws in the shariah legal process. For a case of “attempted lesbianism”, lesbianism itself was conspicuously absent.

As I understand, a search of their car turned up a pair of panties and a sex toy. Based on this alone, the women were arrested. The sex toy would likely be found in violation of Section 292 of the Penal Code, but the women were not charged with that. Instead, they were charged on speculation and assumption of intent. It is rather like finding an illegal firearm in someone’s car and charging him or her with attempted murder. Any subsequent confession would be dismissed on the basis that the arrest itself was without grounds.

The shariah is supposed to hold privacy sacrosanct, and shariah judges are supposed to make every effort to avoid imposing punishments if at all possible. In this case, there was a violation of privacy, an assumption of criminal intent without evidence, and a calculated decision to unjustifiably impose a punishment for reasons that had nothing to do with the case and everything to do with delivering a message to the public. But judicial sentences are not supposed to be PR stunts.

The Terengganu case is not alarming because of the caning; it is alarming because it exposes the grave systemic flaws in the shariah legal process. If shariah courts do not develop, the future will not be the “public acceptance of caning” that they predict, but a public outcry for either their reform or dissolution.