Ever since the Sept 3 news of public caning of two women for lesbianism (musahaqah, also sihaq, tribadism) by the Syariah High Court of Terengganu, the issue came under public scrutiny.
Questions are asked about the fairness of the sentence, whether it was harsh and gave a bad impression of Islam and Malaysia, and whether it was sound under syariah law.
Those who defended the sentence mainly referred to syariah whereas the critics highlighted respect for human rights and dignity.
This was not the first time public caning made headlines in Malaysia, but it was the first time that the punishment was carried out in a public setting, except for the Syariah High Court in Tawau — yet, the victims always seem to have been women.
The facts of the case were that two women, aged 22 and 32, were arrested by Terengganu syariah law enforcement officers for attempting to have lesbian sex in a car in Dungun in April.
They had not actually committed, but attempted to commit musahaqah, as it is not easy to commit it in a car. They were sentenced under the Syariah Criminal Offences (Terengganu) Enactment 2001.
The actual offence of musahaqah is a syariah takzir offence “the punishment for which shall be at the discretion of the court”. Penal sentences in syariah must be founded on clear proof. The details of the act committed must be known unequivocally beyond doubt. Should there be any doubt, the judge is advised to be lenient, and avoid harshness.
The two women pleaded guilty in August to lesbianism and were sentenced to six strokes of the cane and fines of RM3,300. They were caned in front of over 100 onlookers in the court, including their family members, representatives from legal bodies and NGOs, and members of the media.
Musahaqah literally means rubbing fiercely without penetration, typically the act of two women rubbing their private parts against one another, which can also occur between two males. As for the juridical basis of musahaqah, fiqh textbooks refer to the Quranic passage that speaks in praise of believing women who “guard their private parts ( li-furujihim hafizun) except with those who joined to them in the marriage bond”.
The text continues to declare that “those whose desire exceed these limits,” to be transgressors (23: 5-7). Hence, all sex outside marriage, including musahaqah, is transgressive of the syariah limits.
Also quoted is the hadith that provides: “A woman may not look at the private parts of another woman nor may she sleep under the same cover with her.”
Another hadith quoted on musahaqah declares: “When a woman [sexually] approaches another woman, both of them are adulterers (zaniyatan).”
No punishment is, however, mentioned for musahaqah, hence, the conclusion that it is a transgression (maksiyah) that may be punished under takzir. The equation of musahaqah with zina in the second hadith is in its literal sense, as zina in Arabic means transgression and sin. But, zina and lesbianism are different in that the latter does not involve penetration nor does it threaten purity of the family lineage.
Confession under syariah law is also weak evidence as it can be distorted, obtained under pressure, and sometimes made as a way out of a vexed situation. Published information on the case indicates that the two women had initially pleaded not guilty in July, but they later changed their plea to guilty after failing to secure syariah lawyers to defend them.
From April 2018 when they were arrested until September they were under immense pressure in their private lives, and then by the media, especially the Malay media, that consistently described them as “lesbians”, “lesbian couple” and “deviant couple”. The confession they made under these conditions was, therefore, questionable.
Moreover, unlike the hudud offences and qisas (retaliation), which carry fixed penalties, takzir in syariah is an open category that can carry various sanctions: from a verbal reprimand to public warning, counselling, physical and custodial punishments — and in modern times, also probation order, suspended sentence, police attendance, etc.
There is a certain mindset on the part of syariah judges, however, that takzir must consist of caning and lashing. This was the case in times past when penal systems were poorly equipped to diversify forms of penalties.
But times have changed and when there are acceptable alternatives for takzir, an effort should be made to use them.
Aspects of takzir that the judge bears in mind are the conditions of society, public opinion, and the consequences of his judgment on Islam’s good name.
Sure enough, this case received bad publicity worldwide. Almost all major media channels carried it giving Islam and Malaysia a negative profile.
Even in Malaysia itself, women are not allowed to be caned under civil law. Then also, Tun Dr Mahathir Mohamad said on Sept 6:
“The cabinet is of the opinion that this (the caning) does not reflect the justice and mercy of Islam”, as it was the first conviction of same-sex relations under syariah law.
The prime minister added that the women should have been advised instead of being publicly whipped.
In light of the foregoing, public caning in a blaze of publicity and humiliation for a first conviction with a questionable confession, in an unreceptive climate of opinion should have been more lenient.
A verbal admonition, or a suspended sentence of some kind might have been advisable to deter repetition, and would most likely have averted the unwanted publicity.
Mohammad Hashim Kamali is founding chief executive officer of the International Institute of Advanced Islamic Studies Malaysia.
Published in: New Straits Times, Friday 21 September 2018