Malaysian caning reveals politics behind the punishment

MARK COLVIN: Malaysia's Prime Minister Najib Razak has intervened in the row over the Sharia law sentence of caning on a young woman for drinking a glass of beer.

The Prime Minister urged the woman Kartika Dewi Shukarno to appeal against the sentence. he said she'd been too quick in "asking for punishment".

Emeritus Professor Clive Kessler of the University of New South Wales has been studying Malaysian politics for more than 40 years and he's just back from two months there.

He says the whipping sentence on a woman was in itself a kind of political challenge to Najib Razak and his weakened UMNO Government.

The sentence had been due to be carried out yesterday but it was postponed allegedly because of Ramadan.

I asked Professor Kessler what was likely to have happened behind the scenes to delay the whipping.

CLIVE KESSLER: The story is that a higher authority prevented people proceeding with this. This presumably refers to the Federal Government which, in whose interests it is to stop this but in whose shorter term political expedient view it doesn't want to be seen to be acting and that's why there's a great degree of unclarity about how the matter is being handled.

Normally a first offender and one who shows remorse as this, as Kartika has, would not be treated severely. She might be fined if she was arrested at all. She has been given a maximum fine and sentenced to whipping.

MARK COLVIN: So why?

CLIVE KESSLER: Well because the Sharia Court wishes to impose that penalty. We shall come onto that in a moment. But the point is then that in order to have her whipped she technically needs to be in prison. She was not sentenced to a prison term so the manoeuvres yesterday were about the transferring of her to a prison even though she hadn't been sentenced...

MARK COLVIN: And that's got to be a federal prison...

CLIVE KESSLER: And that will have to be a federal prison...

MARK COLVIN: And that brings in the Federal Government.

CLIVE KESSLER: And that brings in the Federal Government, right.

MARK COLVIN: Are you saying that there is politics in the original decision? What, why? You said there was an interesting question as to why now.

CLIVE KESSLER: Well the deeper background to this is that you have a basic legal dualism, legal dichotomy in Malaysia. You have the coexistence both of derivatively common law, British law and Sharia based Islamic law.

In 1988 Dr Mahathir attempted to try and coopt or appease Islamist sentiment when Anwar Ibrahim was his deputy, passed a constitutional amendment whose implications he himself didn't really understand. He thought he was merely giving increased status to the Sharia courts; give them formal legal social equality with the other courts.

But in effect this has been the basis for massive expansion of the role, scope, the activism of Sharia law and placed the Sharia law and its proponents in a position where they can defy the claims of civil law and the state and even the Constitution.

MARK COLVIN: But you said that he did that in 1988. Why are they flexing their muscles now?

CLIVE KESSLER: Again good point. There has been an attempt to expand, to use that extra leeway ever since 1998 to expand the role, the scope, the activism of Sharia law.

The crucial, the crux of the matter came with the following the early 2008 elections, the March 2008 elections which represented a major setback for the UMNO - for the governing party and great advances in particular for its Islamist Opposition, the PAS, the Malayan Islamic party.

In this context the UMNO is seeking to detach PAS from the Opposition Coalition and to garner its support for itself. The UMNO is trying to appease the Islamic party and cannot afford to stand out and oppose it...

MARK COLVIN: So this is all about the fact that UMNO is extremely weak. The Government is crumbling.

CLIVE KESSLER: UMNO is in disarray. It's in paralysis. PAS knows it and in that context the people, whether they are Islamic supporters are not, but who are Sharia law activists and expansionist see the opportunity through the Sharia courts to suddenly impose unprecedented, outra...

MARK COLVIN: The divide and rule strategy.

CLIVE KESSLER: Well the UMNO is trying to play wedge politics of its own and the Islamic party response is playing its kind of wedge politics.

What they are, having failed earlier to get, have the formal institution of the Hudud punishments of the Sharia law, hand chopping and all the rest of it, enacted because to do that at a state level required federal consent which the federal government wouldn't give under Dr Mahathir.

What many of the Sharia court activists such as these judges in Pahang are basically declaring anyway de facto Hudud law sentences without there being enacted and as an ambit claim, as a challenge, as a try-on to see if the UMNO led Government has the courage to stand its ground and oppose them. And so far it has not shown that courage.

MARK COLVIN: Now Kartika, the woman at the centre of all this has said that she wants her caning to take place in public and probably on television. Does that indicate that she may also be playing a political game in all of this?

CLIVE KESSLER: This one can speculate about. I wondered for a while whether she had a very cunning and crafty lawyer and she was playing a very subtle strategy.

It would now seem that she, from the information I've heard, that she has not been particularly well served by her legal advisers. Her father has been very upset about this. And in this context she took the view she wanted it to be over and done with.

But in that context she or her father took the view that if this was going to be done it should be seen publicly to be done.

And that seemed to me would be a good strategy to stop people in their tracks. To some extent the thought of whipping anybody and whipping them in public is appalling.

Whipping is part of Malaysian law for certain crimes but under the civil law of the state whipping is nor permissible for men over 55 and for women at all. Yet the Sharia court authorities were seeking to have this woman transferred on their remit, on their order to a basic, basically to a civil law detention institution for her to be whipped under provisions, their provisions of Sharia law against the provisions of the civil law and constitutional tradition.

MARK COLVIN: How much damage in the end will it have done to Malaysia's international image?

CLIVE KESSLER: I think the potential for damage is enormous. Malaysia wishes to see itself and to be seen internationally as a model, modern, moderate, progressive Islamic country.

Well you can't pursue that objective, hold that view and go ahead with this whipping.