Syariah court judge says Kartika's detention is illegal
KUALA LUMPUR: The order to detain part-time model Kartika Sari Dewi Shukarno in prison for the execution of a syariah whipping sentence is ultra vires, said a senior Syariah court judge.
Terengganu Chief Syariah Judge Datuk Ismail Yahya said if the government went ahead with the detention and whipping, it might open itself up to a suit.
“Kartika can sue. This is because her detention, and subsequently the whipping, is illegal,” he said, one day before
Kartika has to surrender herself to the authorities at Kajang
Women’s Prison to receive six lashes of the rotan for consuming
Although Kartika was sentenced to a fine of RM5,000 and six lashes, she was not given a jail sentence. However, prison rules say that only someone who is a prisoner can be whipped.
"The only way for her to end up in jail is if she doesn't pay her fine. But from what I understand, she has paid it.
"So, this means that there is no way that the whipping sentence can be executed," said Ismail.
On Tuesday, Pahang syariah deputy public prosecutor Saiful Idham Sahimi applied for a warrant of arrest to detain Kartika in prison for seven days.
Kartika will be released after the punishment is served.
Pahang Syariah High Court judge Datuk Abdul Rahman Yunus, who had sentenced Kartika to the initial punishment, approved the application.
Ismail said neither the judge nor the DPP were following procedures.
"If there was a need for Kartika to be jailed, the DPP should have appealed for her to also be given a prison sentence. The DPP did not do this."
Ismail questioned how a warrant could have been applied for without a jail sentence.
"The judge has given the wrong direction and the DPP has made the wrong application.
"If the prosecution wants to appeal the sentence, they should file a notice of appeal. But the appeal should be heard by a different judge."
Ismail said he had raised the issue with other judges and legal officers.
"What we want to achieve is justice, not just trying to mete out punishment."
Senior law lecturer Professor Shad Saleem Faruqi agreed that what Rahman did was illegal.
"The judge is functus officio, that is, his role came to an end as soon as the trial ended.
"He cannot handle the case any more. Once he has pronounced the sentence, the matter is closed.
"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."
Shad said in giving out the detention order, what the judge was doing was giving Kartika a second sentencing.
"The judge imposed only two punishments. He cannot now turn around and impose a third punishment.
"This is illegal. It's almost like double jeopardy."
Shad added that Article 7 of the Federal Constitution stated that if a person had 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."
Although in Islamic jurisprudence it was permissible for a syariah judge to rectify an error himself, Shad said that was not the case with the Malaysian legal system.
Anything that involved the prisons came under federal law.
Islamic Development Department (Jakim) legal adviser Mohd Zulbahrin Zainuddin, however, refuted the idea that the warrant was an additional sentence.
"It is not a warrant of arrest. It merely requires Kartika to surrender herself to the Kajang Women's Prison on Monday.
"She has to show up on Monday. The prison has seven days to implement the whipping.
"If they do it early in the week, then the prosecutor can apply for a warrant for her to be released. She doesn't have to stay in the prison the entire seven days.
"So, it's not a jail sentence. It's not the same as normal prisoners, who are made to work.
"Kartika will just be detained. The prison is just a place for her to wait," Zulbahrin said.
He added that since Kartika had not appealed the conviction within the stipulated 14 days (which ended on Aug 3), the prosecution applied for the sentence to be executed and the court issued the warrant.
According to Zulbahrin, Section 125 (4) of the Syariah Criminal Procedure Act 2002 allowed the court to order her detention.
"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."
Shad, however, disagreed.
"I'm not impressed with the argument that this is not a prison sentence.
"Please ask any husband whose wife is being detained whether he thinks it's not imprisonment.
"This attitude is totally insensitive to human feelings. The law should not be absurd."
Shad said what was planned for Kartika seemed to be neither detention nor a jail sentence.
This is because a person detained on suspicion of committing a crime is held in a remand centre, while a convicted person is held in a prison.
"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."
Shad said since the whipping sentence could not be executed, the courts should give Kartika the benefit of the doubt.
He also urged the prison authorities to express their inability to do the whipping.
Shad said the punishment meted to Kartika was cruel and disproportionate to the crime.
Citing Surah Shura, Verse 40, Shad said Islam demanded that the punishment be equal to the offence.
"For a Muslim girl who drinks beer in public to get a RM5,000 fine, six lashes of the rotan and now jail is too much.
"A custodial sentence is not right. She should be given rehabilitation instead, and advice. This is more appropriate."
Shad said it was "morally reprehensible" to use Kartika's punishment as a lesson for other Muslims who might consume alcohol in public.
Kartika, 32, committed the offence on July 12, 2007, at a nightclub in Cherating. She was arrested with two others by the Pahang Religious Department officials in a raid. Kartika pleaded guilty and chose not to appeal.