An open letter to Home Minister Dato' Seri Hishammuddin Tun Hussein.

Dear YB,

On Feb 17, YB announced at a post-cabinet press conference that three Muslim women had become the first in the country to be whipped for Syariah offences. The three were found guilty of having illicit sex under Section 23 (2) of the syariah Criminal Offences (Federal Territories) Act 1997. The nation was informed that the sentence was carried out on February 9 at 10 am at the Kajang Prison.

Two of the women were given six strokes of the rotan while the third was whipped four times. JAG had written to YB on Feb 18 requesting for an urgent meeting, however since your office was unable to meet us, JAG now writes to you seeking clarification as we are somewhat bewildered and concerned by the turn of events and mixed messages by various leaders including Umno party leader and Prime Minster of Malaysia, Datuk Seri Najib Abdul Razak.

• When the PM received the JAG memorandum ‘Justice for Kartika, Stop Whipping, End Corporal Punishment for All Offences’ on Aug 25, 2009, he agreed that it was ‘not right’ for Kartika to be whipped and she should make an appeal to the courts.

• Then in the midst of heartrending reports of abandoned babies, the wife of the prime minister, Datin Seri Rosmah Mansor urged women’s associations to take action to help girls with unwanted pregnancies. She said, ‘ Perhaps the babies were dumped because the girls who gave birth to them were ashamed or afraid... ’

Considering that the women who were whipped had also had babies out of wedlock, we are confused by this contradicting yet caring attitude towards unmarried mothers. What therefore is the actual policy towards such women?

• Various respected Islamic scholars like Professor Hashim Kamali, Imam Feisal Abdul Rauf, Nasr Abu Zayd and Abdullahi an-Naim have reminded us of the Qur’anic teachings which emphasise repentance, forgiveness and personal transformation. The verses in punishment for ‘zina’ or adultery and ‘qazaf’ or false accusation of adultery (Surah An-Nur: 2-4) are followed by the verse of repentance and forgiveness (Surah An-Nur: 5).

Even the verses on punishment for theft (Surah Al-Maai’dah:38-39) and robbery (Surah Al-Maai’dah:33-34), emphasise that an offender who repents after his crime and amends his conduct, is redeemed, as God is forgiving and merciful. Principles that are echoed in all our religions in Malaysia.

Despite the above assurances and the call for compassion and reason, your ministry sanctioned the whipping of three women and four men. JAG believes that overriding and underpinning all of our religious, cultural and spiritual values are human rights principles that are governed by our conscience and reason. JAG would therefore like to raise four areas of concern to YB.

Firstly, the issue of non-transparency in implementing the sentence on whipping. Why the secrecy? The announcement of the whipping came more than a week after the three women and four men were secretly whipped, and to do this surreptitiously may imply that the government wanted to hide this degrading and unjust treatment from public scrutiny.

Last year when Kartika Shukarno was sentenced to be whipped after she was caught drinking beer at a hotel, there was a public outcry and the sentence was deferred. Despite the ongoing debate on whether Kartika should be whipped, including both national and international criticism on her sentencing, the Home Ministry ignored all arguments by civil society and went on to sanction the whipping.

Secondly, the issue of human rights violation. The media reported that YB had said ‘It was carried out perfectly. Even though the caning did not injure them [the women], they said

it caused pain within them.’ YB, although corporal punishments were a common form of punishment in medieval society regardless of their religious faith, such punishments are now regarded as cruel, degrading and inhumane treatment whether it causes pain or injury.

Whipping for any offence is anachronistic and inconsistent with a compassionate society. International human rights norms condemn whipping and call for its abolition. As a party to the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (Cedaw) since 1995, Malaysia is also committed to uphold respect and equality for women.

This commitment is complemented by Malaysia’s obligations under the Universal Periodic Review whereby Malaysia’s delegation during the UPR process in February 2009 had reaffirmed Malaysia’s ‘respect for human rights long established given the country’s character as a melting pot of various cultures, religions and ethnicities’

Furthermore, the Malaysian government committed itself to prevent the caning of children under the Convention on the Rights of the Child. JAG was delighted with these promising steps towards a total prohibition against whipping as a form of punishment for all persons, regardless of age or gender, and whether under civil or Syariah laws.

However YB’s wholehearted endorsement of the whipping of the three women and four men has further tarnished Malaysia’s human rights record.

Thirdly, there are unresolved constitutional questions. Article 8 of the federal constitution guarantees equality for all women in Malaysia and yet one group of women ie, Muslim women will now be subjected to whipping whereas women of other faiths are exempted. Under federal law, a woman cannot be whipped, but yet under syariah law she can.

JAG is not asking that all women in Malaysia be subjected to whipping in order to rectify this discrimination. In fact JAG calls for the abolition of whipping in the Penal Code and syariah laws for both sexes thus eliminating discrimination and cruel treatment against not only Muslim women but also men.

We further raise the following questions on law: Can the Kajang prison which is established under federal law execute an order issued by the syariah court which is under state jurisdiction? Can a federal authority execute a sentence of whipping against a Muslim woman when the Prison Regulations 2000 forbids corporal punishment to be applied to a female prisoner (of any age), or a male prisoner who is more than 50 years old?

Fourthly, the institutionalising of moral policing. It was also reported that you had said ‘ Kartika's case had flagged concerns about how women should be flogged and that the recent canings demonstrated that the Prisons Department can carry out punishments in accordance with Islamic law. The punishment is to teach and give a chance to those who have fallen off the path to return and build a better life in future.’

As such, are we to understand that ‘moral policing’ will now be one of YB’s responsibilities

and deliverables under the Home Affairs Ministry? As far back as 1997 (when three beauty queens were arrested for syariah offences for dressing ‘indecently’) memoranda had been submitted by JAG together with the National Council of Women’s Organisations and civil society groups to halt moral policing and review the Syariah Criminal Offences Act. In 2005

‘Malaysians Against Moral Policing’ submitted a memorandum endorsed by 53 organisations, three political parties/wings, a business entity, 22 elected representatives and more than 250 individuals. The joint statement called for the repeal of provisions in religious and municipal laws that deny citizens their fundamental rights.

YB, moral policing reflects a regressive regime that can easily slide into voyeurism, vigilantism, snooping and injustice. We ask YB to consider the following questions:

• Is it the duty of the state – in order to bring about a moral society – to turn all ‘sins’ into ‘crimes against the state’?

Lastly, JAG requests YB to consider our many concerns and questions. We look forward to YB’s response.

The writer represents the Joint Action Group for Gender Equality (JAG) on behalf of the Women's Aid Organisation (WAO). Sisters in Islam (SIS), Persatuan Kesedaran Komuniti Selangor (PKKS), the All Women's Action Society (Awam) and the Women’s Centre for Change (WCC).