Came across this article by blogger KTemoc Konsiders, and truthfully the legality behind it is so confusing.
The Malaysian Insider’s Legalities complicate Kartika’s caning refers to the case of Kartika Sari Dewi Shukarno who was to be whipped this week for drinking beer.
Kartika Sari Dewi in Indonesian means the ‘goddess of the essence of the star’ (wow). And with such a name perhaps she has been protected by a Higher Being.
Syariah experts have discovered a lacuna in the court’s punishment decree against her, which may possibly prevent the authorities from caning her.
By the way, in case any Utusan reporter is reading this, ‘lacuna’ does not mean any insult to Islam, DPM Muhyiddin or Rais Yatim wakakaka.
According to Terengganu Chief Syariah Judge Datuk Ismail Yahya, and supported by senior civil law lecturer Professor Shad Saleem Faruqi, Kartika was fined RM5,000 and given six lashes by the Pahang Syariah Court for the offence of yamseng-ing on 12 July 12 two years ago at a nightclub in Cherating but no jail sentence.
In Malaysia only the prison department and no one else may cane a prisoner.
As Kartika wasn’t sentenced, she is not a prisoner, thus she needn't go to prison. Therefore how is the authority going to cane her?
Well, according to the Malaysian Insider, Islamic Development Department (Jakim) legal adviser Mohd Zulbahrin Zainuddin unsurprisingly asserted it requires just a warrant to require Kartika to turn up at the prison for sentence to be carried out.
He mumbled unconvincingly: “Kartika will just be detained. The prison is just a place for her to wait. 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.”
Not so, said Professor Shad Saleem Faruqi, arguing that a detention order (via a warrant to detain) is in fact a second sentencing, i.e, an additional penalty to the caning and RM5,000.
And as Kartika has paid the RM5,000, she can’t be jailed in lieu.
But she can’t be cane unless she is jailed. And she can't be jailed as there's no jail sentence imposed on her - the 'lacuna' that Professor Shad mentioned.
“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.”
“The judge imposed only two punishments[i.e. RM5,000 and caning]. He cannot now turn around and impose a third punishment. This is illegal. It’s almost like double jeopardy.”
Shad also quoted Article 7 of the Federal Constitution which states that if a person has 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.”
Shad explained: “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.”
Terengganu Chief Syariah Judge Datuk Ismail Yahya warned Jakim that the whipping will beultra vires [any Utusan reporter around? Wakakaka] and opened the authorities to a legal suit.
He advised: “Kartika can sue. This is because her detention, and subsequently the whipping, is illegal.”
For those Utusan reporters and Islamic Development Department (Jakim) legal adviser Mohd Zulbahrin Zainuddin, I say not ‘lacuna’nor 'ultra vires' but: