SEPTEMBER 9 — Terengganu shocked the country, and the world, by caning two women in a Shariah court while nearly 100 people watched; the first in an offence involving homosexuality.
The sentence, and the public debacle that followed, however seemed to only strengthen the resolve of Islamist state governments to take that plunge into harsher corporal punishments under the Islamic penal code — either through hudud, or takzir.
After Terengganu, Pahang announced it too, is working towards administering public caning against the LGBT. Currently, its Shariah criminal offences enactment does not penalise homosexuality, just “men behaving like women” and vice versa — a provision used to target transgenders.
The same week, Kelantan said that it is proposing to hold its public canings in its stadium — other suggestions included public halls and mosque compounds — turning these canings into rowdy and dreadful spectacles.
Besides Terengganu, Kelantan is the only other state with hudud and takzir already enacted. Both states are governed by the Islamist party PAS.
And both their enactments are restricted by the federal Syariah Courts (Criminal Jurisdiction) Act 1965 or Act 355, which PAS has so far unsuccessfully tried to amend. But things are not over yet, as deputy minister in charge of religious affairs Fuziah Salleh revealed this week that the attempt to amend the Act to allow harsher Shariah punishments will be back in one form or another — but this time spearheaded by the Pakatan Harapan government itself.
This is, however, not the first time a public caning has made headlines. But almost always, the victims here have been women.
It is dark days for the LGBT community here, and if the authorities are left unchecked, this will only spell a deterioration of human rights and the protection of citizens’ dignity.
In order to do that, it is also important to debunk the argument and propaganda in support of public Shariah caning here.
Here are some myths peddled by the Islamist lobby that can easily be dismissed:
1. The two women admitted to being lesbians
The 32- and 22-year-old women were arrested for only attempting to have lesbian sex in a car in Dungun in April.
They were charged under Section 30 of the Syariah Criminal Offences (Takzir) (Terengganu) Enactment 2001 for alleged musahaqah. The term is loosely used to mean lesbianism, but it is actually more specific and refers to the act of rubbing two women’s private parts together.
In sexual parlance, you may know it as tribadism or “tribbing.”
No sexual intercourse had yet been committed by the two women. Admittedly, tribbing — or even any heterosexual acts — are not that easy to do in a car. And so, the women were also charged under Section 59 that criminalises any “attempt” towards a Shariah offence.
In July, the women initially pleaded not guilty. They may have had a good case. It would be difficult to prove they were committing tribadism, much else attempting it.
But according to transgender advocacy group Justice for Sisters, the women later changed their plea to guilty, after failing to secure Shariah lawyers to defend them, in addition to the immense pressure they must have been facing in private.
Media representation also did not help, especially in the Malay media where they were described as a “deviant couple.”
Almost always, they were described as “lesbians” or a “lesbian couple” with certainty, when the only thing sure was that they were accused of just attempting tribadism, and reportedly possessed sex toys in the car they were caught in.
If we are more enlightened and open with sex, we may realise that those simply do not make a woman lesbian.
2. Critics prefer civil caning as the alternative
This is the biggest strawman argument and red herring by the Islamist lobby, who kept arguing that caning under civil law is harsher and more cruel than its Shariah version.
While that may be true, critics of Shariah caning are not looking for it to be replaced with the civil version. We want all caning punishments abolished, what more the Shariah one.
The Malaysian Bar and the Human Rights Commission of Malaysia (Suhakam) have made their stance clear this week that both canings are barbaric and must go, with the former pointing out that 53 countries have banned all forms of corporal punishment. Four of them are Organisation of Islamic Cooperation (OIC) members.
Coalition of Malaysian NGOs in the UPR Process (Comango) has pointed out that human rights defenders have called for caning to be abolished as early as 2007.
There is nothing merciful nor educational about punishing someone in public. What the Islamist lobby wants with such public sentencing is merely an advertisement of cruelty, and to deliver threats against dissenters. We must question when religions act this way, devoid of compassion.
Activist Juana Jaafar highlighted that observers said the caning of the second woman was harder than the first. How was this fair?
“The impact of ‘cruelty’ towards the physical, psychological and emotional aspect of the women were vanished from the message, including the reality that the women were made merely as an object of exhibition in the open court,” she tweeted.
3. Malaysia is free to enact its laws
Already, there are discrepancies in the way Shariah and civil laws work. Women are not even allowed to be caned under civil law.
Several proponents, including PAS MPs, have argued that Malaysia must not be bound by United Nations and its universal provisions of human rights, and is free to enact any laws contrary to international treaties it has ratified.
This is, of course, a backwards way of thinking, as former member of the United Nations’ Convention on the Elimination of Discrimination against Women (Cedaw) committee Shanthi Dairiam said this week.
Shanthi pointed out that even if Malaysia does not turn those international treaties into domestic laws, it must not do anything that opposes those treaties.
Our foreign minister Saifuddin Abdullah must act fast in ensuring Malaysia ratify all other core human rights treaties, as he has pledged.
In turn, Putrajaya must act forcefully to ensure that all Shariah laws obey the Federal Constitution and any other federal acts that protect our citizens’ dignity.
There is a need for a widespread review and overhauling of many Shariah provisions that do not merely encroach, but spit on our civil liberties and rights.
Shariah laws may be the jurisdiction of each state, but it must follow the Constitutional and secular spirit of the federal government, not the other way round.
* This is the personal opinion of the columnist.