To Cane or Not to Cane?

It may surprise some who read these words that the title of this piece is also the name of a seminar and workshop at an upcoming (July, 2010) professional conference sponsored by the Department of Psychiatry at Kuala Lumpur’s General Hospital.

Reading some non-Muslim vituperation over the caning issue, you might not guess that the issue is receiving the highest professional attention and scrutiny. Indeed, this factor in Islamic law of Sentencing is insulted and thoroughly misunderstood by non-Muslims even here in Malaysia, particularly in a recent column written by one of the editors of the Star newspaper.

Let us remind this editor and other Islamophobes that the issue of humiliation versus incarceration is of the utmost importance to resolve in the modern world. In the 1980’s, San Diego, California, was already releasing all prisoners held in its city jail, simply in order to make room for the waiting list of new prisoners.

US state governments were already subcontracting prison services out to private prisons, in which inmates were treated with notably more humanity and intelligence, not only in food and healthcare, but also in rehabilitation programs.

The western so-called “liberal” system of punishing criminals by locking them up in tiny, dirty cells together with many other more hardened criminals has been breaking down for some time now. The recidivism rate (the rate at which ex-convicts return to their lives in crime, and then show up back in their jails once again) has reached almost 90% in some cases, proof positive that incarceration does NOT deter crime.

The Prophet Muhammad (s.a.w.) received in the Holy Qur’an a system of crime deterrence based on personal and social humiliation of the criminals. One of the principal sentencing is caning. What we Muslims must do post-haste is collect statistics to verify whether or not our divinely-revealed system, administered correctly and without medical damage, actually does deter criminals from further aberrant behavior. The effectiveness of medical punishments as social deterrents for more serious crimes must also be investigated.

What we must NOT do is postpone such punishment for weeks and months, while the convicted criminal waits and waits for his/her sentencing to be carried out, enabling them to return to normal daily life. Such delays constitute a de facto surrender to the non-Islamic system of incarceration, since such criminals are not free until their punishment has been carried out.

Even the sister sentenced to caning in Pahang for drinking alcohol in public fully accepted her punishment and only begged that it be carried out in a timely manner. And yet, weak-willed Muslims seem to have caved in to the hysterical protest of outsiders by delaying her punishment until today.

The issue of Malaysia’s Federal Constitution will need ultimately to be addressed. It must suffice at present to point out that the Syariah Courts cannot be expected to cave in to the secular legal system in Malaysia’s context.

America’s experience in outlawing alcohol during the 1930’s only succeeded in stimulating one of the most lawless and violent periods in recent American history. Saudi Arabia’s outlawing of homosexuality, along with Malaysia’s, is so obviously unenforceable as to breed almost total disrespect for the law. Even the death penalty does not seem to be stopping or even slowing down the drug merchants.

Balancing secular and Syariah Law in Malaysia is indeed a difficult and important undertaking, due to the racial make-up of the country. However, constitutions can be amended, and should be, when the laws they promulgate run contrary to the overwhelming wishes of the citizenry “on the ground”. If Muslims find that personal humiliation is a more effective crime deterrent than incarceration, they must be given that option under Federal Law as well.

Azril Mohd Amin is the vice president, Muslim Lawyers Association of Malaysia. This is his personal opinion.

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