UPDATE: Malaysia: Caning of Kartika deferred indefinitely pending review

Kartika Sari Dewi Shukarno was sentenced to six lashes and a fine of 5,000 ringgit ($1,400) for consuming alcohol. Shukarno, a 32-year-old model, pleaded guilty in the court in eastern Pahang state to a charge of drinking beer when Islamic authorities raided a hotel nightclub. Consuming alcohol is a religious offense in Malaysia only for Muslims, who make up nearly two-thirds of the population. Offenders are prosecuted in Shariah courts, which handle cases mainly related to family and moral issues for Muslims. Most offenders are fined, but the law also provides for a three-year prison term and caning. Shukarno was the only Muslim caught in the raid at the Pahang nightclub. Malaysian clubs and lounges typically serve alcohol but are not legally required to check if customers are Muslim before serving them, so the hotel nightclub operators were not charged with any offense.

The legal system in Malaysia is complex because the Malaysian state has accepted many of the inconsistencies of British colonial rule. There is in effect a two-track system. Non-Muslims (Malaysian and otherwise) are subject only to secular law. But Muslims (both Malaysian and otherwise) are subject to both secular law and shariah law. So Muslim Malaysians are subject to two sets of laws. So while Kartika can be caned under the shariah law, Malaysia's penal code prohibits caning of women. But the shariah law in Malaysia is under the jurisdiction of 13 separate states with their own interpretations. Only three states in Malaysia — Pahang, Perlis and Kelantan — impose caning for drinking alcohol. In the other 10 states it is punishable by only a fine.

Kartika caned would set a precedent that could subject the hundreds of thousands of Muslim Indonesian women working in Malaysia to the same punishment, at least in the three states where this particular interpretation of shariah law is in force. There are also many Muslim Singaporean women living in and visiting Malaysia, all of whom could suddenly be subject to this same law.

It has been reported by human rights organisations, according to Amnesty International, that undocumented migrants considered "illegals' in Malaysia are being punished through caning, by virtue of the penalties under the Immigration Act, and are in fact the primary victims of corporal punishment. The World Refugee Survey in 2005 placed Malaysia as one of the worst offenders of refugee rights, documenting cruel and inhumane treatment in Malaysia's prisons and detention camps. Often the punishment of caning, although discretionary, is handed down, as a deterrent. There are sets of demands now being put forward to the Malaysian government to stop caning as a form of torture altogether and to repeal the two sets of justice system. In 2006, The Malaysian Bar at its AGM passed a resolution declaring that the corporal punishment of whipping is cruel, inhumane and degrading and called for its abolishment.

'It is time for Malaysia to subscribe to Article 5 of the Universal Declaration of Human Rights, that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” and reject corporal punishment altogether as a form of sentencing. We all have the ability to affect the consciousness of members of our family, community, nation and planet. The voices of those who support cruelty are loud, but the silent majority can make themselves heard.' (Renuka T. Balasubramaniam, member of the Human Rights Committee (HRC), Bar Council Malaysia)