Saturday, June 16, 2007

Capital Punishment for Rape

Excerpts from The Malay Ideals (2002)

If serious crimes were meted out with stricter and harsher punishments, we are confident that their numbers would reduce dramatically. In Malaysia, serious sexual offences such as rape is strikingly on the increase. In 1985 there were 522 reported cases of rape and by 1996 it had more than doubled to 1071.[1], [2] A later study announced that 2.4 cases were reported daily in 1993 and the figure had risen to 4.1 in 1998. For every reported case there were 10 others unreported. i.e. every 1.7 hours, a person is raped in Malaysia.[3] Perpetrators of such heinous crime are even willing to kill their victims[4] to avoid identification and indictment.[5] Since June 1995 up until June 2001, 70 teens had been raped and killed.[6] School children within school compounds have been targeted.[7] Young children are not safe either.[8] Even the elderly are not protected from such terrible ordeal. Rape is even committed by university students[9] and police officers.[10] Incest is also increasing. Fathers rape their own children, brothers rape their own sisters. These rapists feel no remorse for their action.[11]

Under the Penal Code Section 376, offenders for rape can be sentenced to a minimum of 5 years of imprisonment and a maximum of 20 years. They are also liable to be fined or whipped up to 6 strokes of the rattan. The law also stipulates under section 289 of the Criminal Procedure Code that an offender above the age of 50 years be exempted from being caned in consideration of his physical condition.[12] The punishment for rape does not seem to deter criminals. The incidence of rape has not reduced in number. Regrettably it is on the increase.[13]

The fear of being discovered or detained is a big factor for a perpetrator to abandon his intention of a criminal act. If the criminal thinks that he will never be identified and get caught ¾ or very unlikely that he will ever be ¾ he will commit the act. If he thinks otherwise, he would not proceed. In other words, the perception of how effective the authority is at discovering the act, identifying the criminal, apprehending and detaining him, is a key factor that determines whether the crime is acted upon. The fear of being apprehended is a deterrent in itself.

The harshest punishment should also be imposed because this too is a source of deterrent in itself. It is in our opinion that in the case of rape, the assailant if found guilty and convicted, ought to receive the capital punishment. The logic for advocating this punishment is taken from the Shari'ah in accordance with hadiths advocating it for adulterers.[14] Although some may argue that the punishment of death to adulterers is not mentioned in the Qur'an and may even contradict the Holy Book[15] ¾ if we took the prescription of the hadith as true for the sake of argument, we shall see the relevance for advocating the death penalty for rape. It is known that in the case of adultery, according to stringent Islamic law as mentioned above, the act is punishable by death.[16] A person who willingly submits to having extramarital sexual relationship and dishonouring the marriage is condemned to capital punishment. In rape, the victim is neither willing and is forced against her own wish. Her life was also under threat. In most cases, the victim will suffer emotional and psychological disturbance and her sexual life will be affected considerably even if not throughout her entire life. Because of the inhumane nature of rape, the threat on the victim's life, the dire consequences it imposed upon the victim, and the nature of the enforced sexual assault, the form of punishment should be equal or more severe than the punishment for adultery. Therefore capital punishment is advocated for the case similar to rape.[17] However, statutory rape is a different matter. Statutory rape implies consented sexual intercourse of a minor with an adult. The classification of statutory rape might have to be phased out if a law that is to be more attuned to the Islamic Shari'ah is to be applied. This is because according to Islam, sex before marriage is prohibited. Statutory rape is still classified under adultery or fornication.

Even if we did not apply the death sentence upon a rapist, a harsh enough sentence such as the hundred lashes[18] ought to be instituted. In the case of incest, death sentence, is reasonable.[19] Currently incest is charged under rape but the government is amending the Penal Code in order to allow for a stiffer (minimum 6 years instead of 5 years as for rape) punishment in the case of incest and to categorise it as a separate crime to rape.[20] Incest is worse than any case of rape because the perpetrator is a part of the family where the girls and women depend upon to confer protection. But the very people they depend upon now victimise them. The psychological trauma must have been unbearable. A study have shown that in nearly half the cases of incest, the perpetrator is the victim's own natural father.[21], [22] The whole concept and nature of the family breaks down. There is no worse a sexual crime than incest. Worse still, the vast majority involve Malays.[23]

It should be noted that before the Hadd punishment can be imposed on the accused, there is a need to ensure that there is only the barest level of doubt concerning the culpability of the assailant. If possible, no doubt at all of course this is onerous to achieve. Nevertheless, Islam requires that four witnesses are brought to dispel any doubt because to impose such a punitive measure requires that the burden of proof lies at the higher level of "certainty". If there is any element of doubt beyond the barest minimum, then a less harsh a punishment should be instituted in place of the Hadd punishment.

In the case of fornication, even if the culpability of a fornicator is never doubted, at times it is better to be merciful. The Holy Prophet, in the few instances that such cases were brought to his attention by the perpetrators themselves, he (the Prophet) would prefer not to hear their case at all. It could be inferred from this treatment that the Prophet had wished the perpetrators to repent, and to cover their own shame. He time again, turned them away when they came to him for judgment. However upon their unrelenting insistence, the Prophet passed on the Hadd punishment.[24] During the time of the Prophet, not a single case of adultery or fornication was established by the use of four witnesses. All were based on confessions.

In the case of rape, a lesser form of punishment may be necessary because there is hardly a case whereby the victim can bring in four witnesses to testify to the crime. In the case of rape, this requirement is almost an impossibility ¾ even so in the cases of fornication. These acts are virtually never acted upon in full view of the public. If however there are other means of ascertaining the crime to the higher requirement of "certainty" or does not create doubt beyond the "barest minimum of doubt" such evidence as a medical examination that verifies the presence of the assailant's semen in the coital passage coupled with the evidence of forced entry (in rape) then the Hadd punishment may be instituted in place of a confession on the part of the criminal or the presence of four witnesses. Circumstantial evidence should be allowed and so is forensics.[25] However, if the criminal act can only be ascertained to the level of "beyond reasonable doubt" and not to the higher level of "certainty", then, a hundred lashes seem desirable as a punishment for the crime of rape as a deterrent under Ta'azir.[26]

[1] Statistics from The Royal Malaysian Police, Sourced out from 'Shame, Secrecy and Silence : Study of Rape in Penang', Coordinated and Edited by Rohana Ariffin; Penang : The Women's Crisis Centre, Penang 1997 p 9.
[2] In the year 2000, the number of rape cases had increased to 1,210 (3.3 cases per day) and by 2001, the figure stood at 1,354 (3.7 cases per day) ¾ The Star 4 February 2002 "Cops : One murder, three rape cases reported daily".
[3] The Star 8 December 1999 "Rape Cases on the Rise, Says Study".
[4] e.g. the case of Noor Suzaily Mukhtar, a lady engineer who was raped, sodomised and murdered on a bus on October 7th 2000. School girls Farra Deeba Rustam and Nurul Hanis Kamil, also met the same fate on February 13th and July 3rd 2001 respectively.
[5] Reported number of rape victims in 1995: Malays (645), Chinese (139), Indians (97) Others (124) 'Table 3 : Rape Victim at National Level According to Race (1995)' The Royal Malaysian Police; Sourced out from 'Shame, Secrecy and Silence : Study of Rape in Penang' p 11.
[6] The Star 17 August 2001 "70 Teens Raped and Killed Since 1995".
[7] Even school children are not safe from rape, rape within school compounds Sunday Star 12 February 1995 "Rape Report Leaves Parents Very Worried".
[8] Young girls are lured, kidnapped, gulled and forced into prostitution.
[9] New Straits Times 13 April 2001 "Nine Students Held Over Gang-Rape" and The Star 27 April 2001 "USM Undergrad Charged with Raping Schoolgirl".
[10] The Star 28 March 2002 "Three More Cops Held for Rape".
[11] There is no longer the fear of God in the human heart. There is no longer taqwa (God consciousness). Faith, is deficient. Thus such crimes are prevalent.
[12] 'Shame, Secrecy and Silence : Study of Rape in Penang' p 114.
[13] Ibid. p 9.
[14] "Sahih Muslim Hadith (Abridged)" "Allah's Apostle (peace be upon him) said to Ma'iz ibn Malik: Is it true what has reached me about you? He said: What has reached you about me? He said: It has reached me that you have committed (adultery) with the slave girl of so and so? He said: Yes. He (the narrator) said: He testified four times. He (the Prophet) then made pronouncement about him and he was stoned (to death)."
[15] Holy Qur'an 24:2 "The woman and the man guilty of adultery or fornication flog each of them with a hundred stripes: let not compassion move you in their case in a matter prescribed by Allah if ye believe in Allah and the Last Day: and let a party of the Believers witness their punishment."
[16] Abdur Rahman I. Doi "Shari'ah: The Islamic Law" London : Ta Ha Publishers 1984 pp 244-246.
[17] Some advocate crucifixion as punishment. Mingguan Malaysia 27 June 1997 "Perogol Dihukum Mati" (Rapist Punished by Death) "Rape falls under the category of Hudud or highway robbery and punishable by execution or crucifixion, of the cutting off of hands and feet from opposite sides or exile from the land: Crucifixion is considered correct".
[18] See note above (24:2).
[19] The Royal Malaysian Police suggested the death penalty be imposed upon those who commit incest on victims below 12 years old "Perogol Dihukum Mati" (Rapist Punished by Death) op. cit.
[20] Utusan Malaysia, 26 July 2001 "Kanun Keseksaan Dipinda" (Penal Code Amended).
[21] "A study reported 48.8 per cent of incest are committed by natural fathers, 24.4 per cent step fathers" Mingguan Malaysia 27 July 1997 "Cadangan Polis Memang Wajar" (Police Suggestion is Fitting).
[22] Another study of reported cases of incest showed that in 1995 there had been (173 cases) of which incest committed by natural father was (62 cases) or [35.8 per cent], 1996 (200) (father - 65) [32.5 per cent], 1997 January-April (56) (father - 20) [35.7 per cent]. The study classified incest as rape by natural fathers, uncles, natural brothers, grandfathers, close relatives, step fathers, step brothers, brothers-in-law and distant relatives Mingguan Malaysia 27 July 1997 "Jumlah Kes Merogol Keluarga Semakin Meningkat" (Total Rape Cases on the Increase).
[23] "Cadangan Polis Memang Wajar" (Police Suggestion is Fitting) op. cit.
[24] "Sahih Muslim Hadith (Abridged)" "A person belonging to the clan of Aslam, who was called Ma'iz ibn Malik, came to Allah's Messenger (peace be upon him) and said: I have committed an immoral crime (adultery), so inflict punishment upon me. Allah's Apostle (peace be upon him) turned him away again and again. He then asked his people (about the state of his mind). They said: We do not know of any ailment of his except that he has committed some crime and he thinks that he will not be able to relieve himself of its burden unless the Hadd is imposed upon him. He (Ma'iz) came back to Allah's Apostle (peace be upon him) who commanded us to stone him. We took him to the Baqi' al-Gharqad (the graveyard of Medina). We neither tied him nor dug any ditch for him. We attacked him with bones, clods and pebbles. He ran away and we ran after him until he reached the stony ground (al-Harrah) and stopped there and we stoned him with the heavy stones of the Harrah until he became motionless (he died). He (the Holy Prophet) then addressed (us) in the evening saying: Whenever we set forth on an expedition in the cause of Allah, some of those connected with us shrieked (under the pressure of sexual lust) like the bleating of a billy-goat. It is essential that if a person having committed such a deed is brought to me, I should punish him. He neither begged forgiveness for him nor cursed him."
[25] Holy Qur'an 12:26 He said: "It was she that sought to seduce me from my (true) self." And one of her household saw (this) and bore witness (thus) "If it be that his shirt is rent from the front then is her tale true and he is a liar!
[26] See note above on Islamic Jurisprudence for an explanation on Ta'azir.

Friday, June 15, 2007

Human Trafficking & the Sex Trade

This problem has been there in Malaysia for ages and there isvery little being done. Indeed the authorities and government are not serious. They raid a place and the place itself springs up again the very next day. The perpetrators go scot free, and these enslaved workers get detained for having no legal documents.

I dont think the US is wrong in their statement that Malaysia is one of the worst countries involved in human trafficking. Only we are in self denial.

The government would justify, especially in the case of the sex trade that the trade cannot be rooted out, and may even provide justification to have these forced sex workers/slave in this Muslim country! Call it social responsibility and providing much needed services!

I call on the government to shut up and buck up! I bet in 1 year's time, after all this fiasco is over, after the war of words have subsided, there would be more people being trafficked into Malaysia and the sex trade will flourish to an even the government would still be doing nothing meaningful to stop the trade. Mark my word.

Today is Friday

6:162 Say: Lo! my worship and my sacrifice and my living and my dying are for Allah, Lord of the Worlds.

Since it is a Friday, a holy day for Muslims, what better ways to blog about the above verse from the Holy Quran.

A beautiful verse above succintly describes how the life of a Muslim ought to be. At least, this is what Muslims must aspire to be: to worship, sacrifice, to live and die for the sake of the Almighty God.

In other words, the Almighty God must dominate our thinking, remembering Him, choosing the correct path to take when confronted in any situation, choosing the path that we know what God would want us to do.

If we only applied this simple principle, to live and die for Almighty God, I bet this world would indeed transform for the better.

Tuesday, June 12, 2007

KL Downpour : A Surprise Visit

It rained for four hours on 11.06.2007, reminiscing the downpour recorded on an exact date in 2003, a revisitation.

And the result?....flash floods that even prompted the Prime Minister Abdullah Ahmad Badawi to make a surprise visit to the DBKL (Dewan Bandaraya Kuala Lumpur) the day after, requesting explanations and making recommendations and demands. This is the sort of leadership that Malaysia requires, far from the half-hearted response seen during the previous massive floods late last year that hit southern Malaysia in which we saw the PM seemingly prioritising his end of year holidays than that of the fate of the rakyat.

This is a good sign that AAB is on his toes, perhaps a result of his new marriage. The Premier seems to have acquired a new burst of energy and enthusiasm in his work. Let's just hope that this is a start to a better leadership which I must say is rather lacking for the past few years since Tun Mahathir Mohamed stepped down.

Every Single Individual Malay Is Ultimately Responsible

Excerpts taken from The Malay Ideals (2002)

To strive for excellence must be every Malay's single obsession and priority. This is the only way to improve themselves collectively. This is because every human organisation ¾ be it political, economic, scientific, cultural, religious, and others ¾ including the community and the nation are made up of single individuals. To strengthen an organisation, one has to invigorate the individuals that make up the organisation. If the individuals that make up these organisations are weak, the organisation itself will be weak. If the individuals are rich for example, the nation will become prosperous, and so forth. If individuals are superior, then the community will be superior also. Bearing this in mind, it is obvious and expedient that every individual Malay has to vie for superiority. Mediocrity will not improve the fate of a people substantively. Each Malay person, man or woman therefore has to strive and struggle in impelling himself or herself to the limit. Each person must be the cog in the wheel helping to support the wheel of Malay progress through sheer individual strength. If the cogs are weak, the wheel will be in ruin. If Malay individuals are weak, the Malay community will be frail. Also, Malay individuals must not be satisfied with his or her achievements. They must continuously improve. They must be intent on achieving perfection and to better perfection even.[1] There is little use in having a few leaders, corporate individuals, or intellectuals striving very hard when the rest of society is not concerned. Leaders will not be able to make much change if the masses refuse change. Every individual Malay must be motivated and dynamic before the Malay community as a whole can become strong. Every individual must be productive before the Malay society can produce results. The Malay mindset has to covet greatness through struggle, toil, strenuous efforts, persistence and fortitude. They must strive hard, in all their efforts and undertakings. This must be made the Jihad (striving) of the Malays the new mindset of the Malay salient feature. This, has to be their unwavering belief and commitment. Only through this mechanism can they become truly successful.
[1] Perfection here implies excellence. Perfection is only relative to one's given knowledge and skills. With increased knowledge and skills, excellence can be pushed further into a greater state of perfection.

Friday, June 08, 2007

Well Wishes

We would like to take this opportunity to congratulate Abdullah Ahmad Badawi on his marriage to Jeanne Danker Abdullah this Saturday. May this union bring into the 1st family a positive balance of opinions that may have influenced the PM's various views on Malaysian Politics.

Tuesday, June 05, 2007

11th Hour

At 4pm, a day before the murder trial took place, the AG found it fit to change the prosecution team.

Is this to ensure that the prosecution will be more effective?
Is this to ensure that the prosecution will ultimately fumble?

I've never seen a single case change defence lawyers and prosecutors at this rate in history. This should go down in the Malaysia's book of records or perhaps the Guiness world book of records.

For goodness' sake, can't we just go on with the trial without manipulating who is ultimately to be found guilty and who is to be allowed free? For goodness' sake, someone's life has already been stolen, and you people ought to be thankful that it is not your life that was stolen. Imagine if it was indeed you who were being blown to pieces. Who will look after your dependents? How has this aggravated the lives of many who depend on the deceased, the young ones, the elderly. Have the murderers and plotters ever thought of this? It is not just the life of the deceased that was taken, it is also the lives of those around her that was taken away for good. You would not want this to happen to you or your loved ones and you find it fit to do it onto others? How misguided you have become. And you think you will be safe and go unpunished?

Indeed humanity has lost its soul. I pity those who think they can get away with murder. They might be safe in this world, but they will never escape punishment. And they think they can live forever? No, indeed they will realise that time is relative. And that a hundred years on earth is but a blink of an eye. They will not escape punishment. Never.

Strive Hard We Must

94:0 In the name of God, Most Gracious, Most Merciful.
94:1 Have We not expanded thee thy breast?-
94:2 And removed from thee thy burden
94:3 The which did gall thy back?-
94:4 And raised high the esteem (in which) thou (art held)?
94:5 So, verily, with every difficulty, there is relief:
94:6 Verily, with every difficulty there is relief.
94:7 Therefore, when thou art free (from thine immediate task), still labour hard,
94:8 And to thy Lord turn (all) thy attention.

As far as I know, there is not a verse that is repeated in this manner in the entire Quran; one right after the other. This is to emphasise the importance of facing whatever hardships may come our way and that relief is often close by.

Indeed, with every difficulty and hardship, there is relief although we might not realise it. There is always something to gain from the hardships we face if we manage to wade through it somehow.

This is also an injunction for us to be patient. An injunction for us to remain steadfast and to continue to strive hard although we might be free from any occupation.

This surah (chapter) is also telling us to never rest on our laurels. That we must continue to improve ourselves every single day. And of course we must always have the thought that God is ever watchful of our every action because this will keep us in check.

If this simple commandment is implemented wholeheartedly by every single Muslim, rest assured that they will always be masters instead of slaves.

Before a Muslim nation can attain greatness, individual Muslims must attain individual greatness. If the vast majority of Muslims are of sterling quality, the Muslim nation will assuredly be great. Thus to be a great Muslim nation starts at the level of every single individual. The responsibily rests on our own personal and individual person. No one else will be responsible.