Tuesday, September 11, 2018

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.


13 comments:

  1. This religion does things to your brain.

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  2. Wee Ka Siong is asking for an RCI on 1MDB. Amazing. Wasn’t he listening to the rakyat for the last few years? In any case an RCI is not needed anymore. We have gone beyond an investigation to see if there has been wrongdoing. Charges have already been laid against Najib on SRC and charges relating to the parent company 1MDB will follow in due course. An RCI now would set the clock backwards.

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  3. Cheebye motherfucker kaytee should ask najib why he never tui lam PAS.....Because of Najib, PAS becomes stonger

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    1. firstly, I did NOT fCk your mum so don't look at me like a stray puppy as I am definitely not your long lost dad

      secondly, PAS was working with Pakatan Rakyat and subsequently splintered into PAS and Amanah where the latter (part of PAS) continues working in Pakatan Harapan - DAP and PKR defended PAS (or Amanah) most of the time

      Delete
    2. Wakakakaka…

      What a cockagroo comparison!

      R u saying the pas under tg nik aziz is the same pas under hadi awang?

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    3. Aiyoto... Cha Bor's brain has turned to mush.

      As Karpal made clear at the time, DAP cooperation with PUS was contingent on policies such as Hudud and Islamic State not being pushed.

      Once PUS reneged on this, no more alliance.

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    4. and which was why Nga Kor Ming was then spourting Quranic verses while Tokong of talking of the Golden Caliphate

      your political history (or dedak-ised memoy) is piss-poor

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  4. [Pakatan Harapan (PH) Terengganu menyokong hukuman sebat terhadap sepasang kekasih lesbian di Mahkamah Syariah Kuala Terengganu yang disaksikan kira-kira 100 khalayak umum, hari ini.

    Pengerusinya Datuk Raja Kamarul Bahrin Raja Ahmad berkata, pihaknya tidak membantah pelaksanaan hukuman tersebut kerana ia mengikut undang-undang Mahkamah Syariah Terengganu.]

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    1. sebenarnya, hukuman sebat tidak mengikut undang-undang olih karena (mengikut yg ditulis olih penulis Sahih King) mahkamah syariah memutus kesalahan wanita tsb tanpa bukti secukupnya.

      Ya, kesalahan yg disebut mahkamah hanya berdasarkan andaian sj.

      Itu disebabkan keperluan sinis mahkamah menunjuk-menakutkan ajaran kpd rakyat melalui hukuman kpd kedua si-manis (wakakaka) - ya, ajaran kehendak mahkamah syariah yg tidak kait dgn bukti-kesalahan, maka todak mencapai keadilan sebenarnya yg diajar dlm al Quran

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  5. What a bombshell expose of the Syariah Court system of justice as practiced by the politicised syariah Judges.

    Tha Syariah Court Judge should be sued for abuse of powers by the victims and thrown off a high building for using God/Gods law to lie, cheat, manipulate justice, seeking glamour and fitnah.

    Perhaps caning the Syariah Court Judge in public in a big big Stadium would be a good education for the rest of the Syariah Court Judges who misadminister justice according to their whims and fancies.

    What is the Minister of Religion going to do about this matter?

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  6. Why is possession of a sex toy an offence under the Penal Code (Section 292)? What constitutes a sex toy? How about a banana or cucumber? Ribbed or flavoured condoms?

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  7. I'm soli, tis is TS' copyrite statement.. .pls allow me 2 borrow 4 once:
    This religion does things to your brain.

    https://m.malaysiakini.com/news/442804

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    1. “Dulu pun Allahyarham Datuk Nik Aziz Nik Mat sendiri pun pakai Mercedes Benz. Kita utamakan keperluan,” katanya selepas mesyuarat EXCO di Kota Bharu, hari ini.

      Mohd Amar berkata, jika dibandingkan kereta lain harga mungkin lebih murah namun tahap keselamatan Mercedes Benz adalah lebih baik.

      “EXCO banyak berjalan jauh dengan kenderaan dan jarang naik pesawat. Maka perlu kenderaan yang lebih baik untuk keselesaan dan kita tidak mahu sorok perkara ini kerana ia dilakukan mengikut peraturan,” katanya.

      Delete