Cablegate: Caning of Three Women Reflects Umno's Political

VZCZCXRO7666
OO RUEHCHI RUEHDT RUEHHM RUEHNH
DE RUEHKL #0108/01 0501130
ZNY CCCCC ZZH
O 191130Z FEB 10
FM AMEMBASSY KUALA LUMPUR
TO RUEHC/SECSTATE WASHDC IMMEDIATE 3870
INFO RUCNASE/ASEAN MEMBER COLLECTIVE PRIORITY

C O N F I D E N T I A L SECTION 01 OF 03 KUALA LUMPUR 000108

SIPDIS

E.O. 12958: DECL: 02/19/2020
TAGS: KTIP KCRM KWMN PGOV PHUM PREL SMIG MY
SUBJECT: CANING OF THREE WOMEN REFLECTS UMNO'S POLITICAL
TACTICS

REF: A. KL 20 WHAT IS GOING ON IN MALAYSIA?
B. KL 14 UPDATE ON THE ALLAH ISSUE
C. KL 11 OVERNIGHT ATTACKS ON 3 CHURCHES
D. KL 03 GOM APPEALS KL HIGH COURT RULING ON USE OF
THE WORD ALLAH
E. 09 KL 716 CANING PUNISHMENT POSTPONED

Classified By: Political Counselor Brian McFeeters for reasons 1.4 (b)
and (d).

--- SUMMARY AND COMMENT ---

1. (SBU) Summary: On February 17, Home Minister Hishammuddin
announced that three women and four men who had been found
guilty of illicit sex under Syariah law had been caned on
February 9. The three became the first women to be caned in
Malaysia. Caning of women in Malaysia had recently become
the subject of international scrutiny, and Malaysian legal
scholars are wondering what the decision means for the legal
system, since caning of women is against federal law. On
July 20, 2009, Malaysian Kartika Sari Dewi Shukarno, a Muslim
woman, was sentenced by a state-level Syariah court to six
lashes with a cane and a fine for consuming alcohol in
public. To date, Kartika has not yet been caned. Viewing
the caning as a political maneuver, the Islamic Party of
Malaysia (PAS) was critical of the GOM's actions contending
they were not consistent with Islam. NGOs too were critical
of the caning contending that it does not comport with
federal law. End Summary.

2. (C) Comment: Kartika's case put Prime Minister Najib's
new administration in the difficult position of balancing the
competing forces fighting for Malaysia's Muslim identity.
While concerned about preserving Malaysia's image as a
moderate Muslim State, Najib has been unwilling to date to
criticize Syariah law or otherwise downplay the seriousness
of Kartika's offense for fear that it could damage United
Malays National Organization's (UMNO) Islamic bona fides.
That the GOM chose to cane three anonymous women, rather than
the internationally renowned Kartika, seems to be a tactical
maneuver by UMNO to retain or lure back conservative Malay
voters as well as perhaps a testing of the waters presaging
Kartika's caning. That Najib feels the need to placate the
most conservative Malays suggests that his stated intent to
change to a more inclusive, less Malay-centric economic and
political model is facing considerable, resistance within his
own coalition. End Comment.

--- FIRST WOMEN CANED IN MALAYSIA ---

3. (SBU) Home Minister Hishammuddin announced on February 17
that GOM officials caned four Muslim men and three Muslim
women found guilty of illicit sex under Syariah law. Sex out
of wedlock is unlawful under Syariah law. The canings took
place on February 9, and the three women are believed to be
the first women to be caned under the law in Malaysia. Two
of the women received six strokes of the cane and the other
received four. The women were caned in a female prison.
According to the Home Minister, one was released on February
14, one will be released in the coming days, and the third
will be released in June.

--- MALAYSIA'S DUAL LEGAL SYSTEM ---

4. (SBU) Article 3 of the Malaysian Constitution states that
"Islam is the religion of the Federation; but other religions
may be practiced in peace and harmony in any part of the
Federation." Article 3 further provides that issues of
Islamic law are state, rather than federal, matters. Thus,
states, and the Kuala Lumpur Federal Territory, have
individual Syariah law codes and have established Syariah
courts, with jurisdiction over Muslims, to deal with family
law and certain infractions under Islamic law. The
constitution makes clear that federal law has precedence over
state law (articles 4 and 75, "if any State law is
inconsistent with a federal law, the federal law shall
prevail and the State law shall, to the extent of the
inconsistency, be void"). Hence, because Syariah law is a
state matter, any inconsistencies between these two legal
systems should, according to the language of the Federal
Constitution, be resolved in favor of the federal system.
However, Article 121(1A) of the Constitution, added under
former Prime Minister Mahathir in 1988 says, "the courts
referred to in Clause (1) (the High Courts) shall have no
jurisdiction in respect of any matter within the jurisdiction
of the Syariah courts." This amendment introduced ambiguity
about Syariah versus civil law that has yet to be resolved
clearly.

--- CANING IN MALAYSIA ---

5. (SBU) Under federal law, Malaysian judges routinely

KUALA LUMP 00000108 002 OF 003

include caning in sentences of individuals convicted of
kidnapping, rape, and robbery. The law also prescribes
caning for illegal immigrants and their employers and as an
additional punishment for those convicted of some nonviolent
crimes such as narcotics possession, criminal breach of
trust, and alien smuggling. The caning is carried out with a
half-inch wooden cane that can cause welts and scarring.
Federal law exempts men over 50 and all women from caning.
Conversely, some states prescribe caning under Syariah law,
for which there are no exceptions for women. In Syariah
caning, a smaller cane is used and the caning official cannot
raise the cane above his shoulder. Additionally, the subject
is fully clothed so that the cane will not touch the flesh.
Local Islamic officials claim that the intent is not to
injure but to make the offenders ashamed of their sins and
repent.

--- THE CURIOUS ROLE OF THE GOM IN CANING THREE WOMEN ---

6. (C) In the February 9 case, the three women were sentenced
to caning for committing adultery in violation of Section
23(2) of the Kuala Lumpur Federal Territory Syariah Criminal
Offenses Act of 1997. The sentencing of women to such
corporal punishment under Syariah law contradicts the federal
law outlined in Section 289 of the Criminal Procedure Code
that states that women are not to be subject to caning. In
the current case, the three women, previously unknown to the
public, were caned and the public was not informed for over a
week. The canings were administered by federal prison
officials in a federal women's prison. This gives rise to a
possible violation of federal law that the GOM has yet to
explain or address.

7. (SBU) The federal government has highlighted its role in
meting out these sentences, indicating that the decision had
Najib's support. Home Minister Hishamuddin (Prime Minister
Najib Razak's cousin) placed himself at the forefront of this
issue, announcing on February 17 that the women had been
caned, commenting that "the punishment is to teach and give a
chance to those who have fallen off the path to return and
build a better life for the future," sounding much like an
Islamic cleric. In a February 19 interview, Deputy Prime
Minister Muhyiddin did not address the legal issue, focusing
instead on the need to explain that Syariah caning is
ritualistic rather than severe. The government-influenced
daily, Bernama, on February 19, quoted Minister for Religious
Affairs in the Prime Minister's Department Seri Jamil Khir
Baharom as saying that the women were remorseful and
"welcomed their sentence." In a separate article, Bernama
reported that Minister of Women, Family, and Community
Development Shahrizat, said that her Ministry will monitor
future caning of women noting that "as the minister in charge
of women affairs in this country, I really hope that the
whipping sentence on Muslim women will be carried out fairly
and judiciously."

--- REACTION FROM PAS ---

8. (SBU) When the canings were announced, some observers
wondered whether the punishments could be seen as an effort
to divide the opposition coalition People's Assembly,
expecting PAS to support the punishments, while the secular
Democratic Action Party (DAP) would likely oppose the
canings. However, PAS Central Working Committee Member and
Member of Parliament Dr. Dzulkefly Ahmad of Selangor urged
his party not to fall into the trap of allowing UMNO to
portray itself as the defender of the Islamic agenda. He
asserted that there is a political motive behind the caning
of the three women. If UMNO were sincere about upholding the
principles of Islam, it would address the source of problem
rather than just implementing the sentence and would be
combating corruption, abuse of power, cruelty, and
embezzlement of the wealth of the country by political
cronies.

9. (SBU) PAS Women's Movement Chief Nuridah Salleh asserted
that the GOM's caning of the seven individuals did not
conform to Islamic principles because it was done in private
and not in the open as required by Islam. She explained that
canings are to be public in order to educate and instill
awareness among the people and to ensure the violators do not
commit the crime again. She called on the Home Minister to
remember this intent prior to carrying out future caning
sentences.

--- REACTION FROM CIVIL SOCIETY ---

10. (SBU) Civil society groups have condemned the GOM caning
of the women. The Malaysian Bar Council, on February 18,
issued a press release expressing its "shock and
disappointment" and elaborating, "given that the Kartika
issue remains unresolved and the public outcry on issues of

KUALA LUMP 00000108 003 OF 003

constitutionality in regards to the fact that corporal
punishment is forbidden for women under Section 289 of the
Criminal Procedure Code, it is indeed shocking that the
Government has made the announcement only after the
punishment has been carried out." Similarly, Sisters in
Islam questioned the GOM's motive behind caning the Muslim
women while the issue of Kartika's case remains unresolved.
All Women's Action Society president Sophia Lim asserted that
"the Home Minister needs to explain why the government
allowed the punishment to be carried out in secret on an
issue that is of high public interest with very far ranging
and damaging consequences."
KEITH

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