T HE swish of a cane followed by the sharp “thwack” as it met a human back heralded a new era in Sabah last week. It was the sound of the enforcement of Syariah law on Muslims in the state and the quickening pace of change in this laid-back region of Borneo is making some squirm.
The harsher approach to what most had always viewed as private and personal moral choices was hinted at by state Islamic authorities last year but few thought much of it. They should have known better.
The first to feel the sting of the new rules was George B Kabayan @ Kamarudin Abdullah, a 37-year-old native man who had converted to Islam. He had been convicted of having an affair with an Indonesian Muslim woman at his kampong in Kota Belud district, about an hour’s drive from the state capital, in March this year.
Together with five lashes of the cane on his back, the Syariah Court also imposed a year’s imprisonment on the father of five for committing the offence under Islamic law with his partner Suryati binti Sumarto.
The same sentence was handed down to Suryati, who has borne two children with him at a village in Kota Belud. She, however, has appealed her sentence and is out on a bail bond of RM5,000.
The two were detained after villagers complained to the Sabah Islamic Religious Affairs Department in April last year of their illicit affair which apparently had gone on for some time as Suryati had already borne him two children.
They were charged with committing unlawful sexual intercourse under Section 80(1) of Syariah Criminal Offences Enactment 1995 for which a person can be fined up to RM5,000 or jailed up to three years’ or given not more than six strokes of the cane or any combination of the punishments. None was used until this month.
Some Muslims in the state who spoke out were taken aback by the whipping. Those practising Islam in Sabah, a former British colony that was until the 1990s, predominantly populated by Christians, have long been known for their tolerance.
Village affairs and scandals were always left to the village chief or native courts to sort out. They were respected and had jurisdiction over such offences in the kampongs. The harshest punishments they meted out affected the pockets of offenders. A fine of a few head of buffalo and other livestock was not unusual though native courts could also impose limited prison sentences.
The “adat” or native customs and traditions controlled the behavior of all especially in the kampongs and was strictly enforced through appeasement or compensation known as “sogit” for monitory loss, humiliation or embarrassment suffered by the plaintiffs.
Indeed that was the case just last year when a tribal court in another district of the state fined a man and his lover four buffalo and a pig as punishment for a similar offense under native customary laws. Everyone was compensated including the village.
Buffalo and livestock have always been considered symbols of wealth in Sabah.They served as dowries as well as for chastisement when “adats’ were broken.
Now that state-controlled Islamic authorities have decided to enforce the more stringent Syariah law on Muslims especially in the kampongs, old ways that held sway will be diluted along with the efficacy of traditional laws to guide conduct.
Local newspaper, the Daily Express, reported on its front page on Oct 11 that a group of “10 senior Syariah officers from the Sabah Syariah Judicial Department headed by its Head Registrar Samal Muji witnessed the caning of Kamarudin at the Kepayan Prison” in the state capital of Kota Kinabalu the previous day.
According to the paper, Kamarudin initially challenged the sentence but withdrew it.
“This is a first Syariah case in Sabah where a Muslim man has been caned based on the whipping sentence that was meted out by the Syariah High Court. This Syarie caning is not to cause pain to offenders but to make them realise their offences and to serve as a lesson to other Muslims to stop committing same act and to repent before it is too late,” Samal was quoted as saying.
He explained that the whipping is not a punishment under the hudud law but rather under the Sabah Syariah Criminal Offences Enactment 1995.
He said Kamarudin was “whipped on his back by prison officers unlike criminal offenders” who under civil law are caned on their bare buttocks, breaking the skin and leaving permanent scars. Caning with rattan canes has been used for decades for corporal punishments in Malaysia, Singapore and Brunei.
In 2009, Kartika Sari Dewi Shukarno, a 32-year-old mother of two, became the first woman in Muslim-majority Malaysia to face caning for drinking alcohol but the sentence was postponed and then reduced to community service after the case raised an uproar.
Islamic morality police – enforcement officials of the Islamic Religious Department – arrested Kartika in a raid for drinking beer at a hotel lounge at a beach resort in Pahang in December 2007. She was sentenced to six lashes of a rattan cane by the Shariah court in what was considered a warning to other Muslims to abide by religious rules.
Islamic officials had taken Kartika into custody and were driving her to a women’s prison for the caning when they abruptly turned around and sent her back to her family home in northern Malaysia and set in motion a series of behind-the-scenes moves to commute the sentence.
Islamic law provides for a three-year prison term and caning for Muslims caught drinking. Most previous offenders were fined and no woman has ever been caned and most citizens were surprised at the verdict against Kartika.
Observers have also noted that the rich and famous have got off with relatively light sentences for offences though Islamic officials have defended the enforcement of religious law as necessary to uphold Islamic values.
In April last year, Kinabatangan Member of Parliament (MP) Bung Mokhtar Radin, 51, pleaded guilty at the Gombak Timur Lower Syariah court in Kuala Lumpur to committing polygamy without consent of the court. His second wife, actress Zizie Izette A. Samad, 32, also pleaded guilty to entering a marriage without the consent of a marriage registrar.
The MP was sentenced to one month in prison and fined RM1,000 for the offence though the jail term was set aside on appeal. Judge Mukhyuddin Ibrahim reasoned that a man who commits polygamy without consent should not be served a jail sentence because of concerns that it would affect his responsibilities to his family. He also took into account that “the reputation and image of appellant as a member of parliament would be viewed negatively by society” if the prison sentence was imposed.
Amnesty International, Malaysian lawyers and some politicians have condemned the harsh Islamic punishments and critics have warned it would tarnish Malaysia’s image as a moderate country where Muslims make up 60 percent of the 27 million population.
The problem is that thousands of natives in the Borneo states of Sabah and Sarawak converted to Islam over the past several decades after joining Singapore and Malaya to form the new nation of Malaysia on September 16, 1963. Too many did so for better career prospects in the civil service and at the behest of government officials.
At the time these rapid, overnight conversions took place in the 1960s and 70s, few knew or even considered their obligations under their new religion and the severe penalties that would be imposed under the Hudud or Syariah laws for any transgression. All that was alien to the more moderate Islam practised in this region or so they thought.
The Koran mandates flogging for unlawful sex. Some traditionalists ascribe to Muhammad the view that adulterers should be stoned to death. How to reconcile liberal democracy with the notion that such questions have been settled for ever by divine revelation?
Muslims commentators acknowledge that the issue is complex. If the Koran is a revelation of God, then its instructions cannot simply be dismissed as outdated. Some believers would still like to apply Islamic penalties to the letter.
Some have also argued argue that there is something about all state religions that make it hard to reconcile with liberal democracy — a political system where all citizens are equal in basic ways.
But a distinction can be made between commands that were given in a certain context, and those which hold good for all time. And modern Muslims, including rather conservative ones, have been quite imaginative in rereading some of Islam’s legal and penal traditions.
An outspoken local Muslim politician, Amde Sidik, warned after Kamarudin received his lashes that “not all Muslims these days are living in the dark ages”. He believes that Sabah Islamic authorities are merely mimicking the robust Islamising efforts of their counterparts in the peninsula so as to prove that they are as pious in the “wild east” as Sabah is known.
Another commentator who signed himself off as “Hamba Allah” said he was dismayed by the caning of Kamarudin and called it a step backward for Sabah Muslims.
He argued that such decisions by the syariah court are signaling “a move towards hardline and inhuman application of the principles” of Islamic laws devoid of any understanding of context or notion of universal justice.
“It is common ignorance among Muslims in Malaysia that Syariah law is static and must be preserved in the context of 7th century Arabia … nothing can be further from the truth,” he argued. In his opinion, laws as implemented in Europe through the European Convention on Human Rights adhere much more closely to Islamic principles than the Syariah laws practiced here.
“So long as there is a dual justice system in Malaysia, there will always be discrimination. It is unrealistic and uncivilised to implement a form of law that was crafted by scholars from the 7-8th century Arabia in 21st century Sabah” whose population has always been multi-religious.
Kamarudin’s punishment was for a crime based solely on his moral conduct, the writer points out. “The fact that his five children will be fatherless for a year for a ‘crime’ which concerns only his personal life seems not to have been taken into account by the syariah court… Where is the justice for those collaterally affected by such a decision?”
Sabah’s normally vociferous politicians have chosen to remain silent on Kamarudin’s whipping. This may be because they see the sharpening ethnic and religious divisions as an exploitable route to power.
Meanwhile, with every year that has passed since Malaysia’s Borneo states joined the union, it has become more fashionable to argue that Sabah and Sarawak having relinquished their political independence a long time ago are also losing the cultural identity.
The caning will undoubtedly raise tensions between religious conservatives, liberals and secular elements in society. Centuries of Borneo culture, customary practices and laws that defined its people and the glue that held them together will slowly be forgotten. The days of the buffalo and their use in the justice system in Borneo may be at an end. Time will tell if it was a better system.