Will Mujahid defend the Federal Constitution?

The act of caning two women caught for attempting same-sex relations in Terengganu is nothing short of barbaric.

There is much that we can rant and rave about in elaborating this point, but let us attempt to move quickly on to substantive questions.

The first of these is, will the Harapan government intervene, or at least prevent a recurrence of this horrific episode?

Minister in the Prime Minister's Department for Islamic Affairs Mujahid Yusof Rawa gave an extended interview in the Bahasa Malaysia edition of Malaysiakini.

In this interview, Mujahid stated quite a clear, fairly reasonable position, indicating that it is the government’s stance that anything LGBT is morally wrong, but also that the government does not have a right to interfere in the personal space of any individual.

Thus, according to Mujahid, it is for God to punish what individuals do in private, while the government will only take action if such actions are done brazenly in public, with a view to "promoting" such acts.

Many may understandably take issue with such a stance, and there is much to criticise and debate there.

However, for the sake of this article, let us take the minister’s stated policy as a given and as a starting point, and see whether this caning was justified.

Is it in accordance with federal law and policy?

There appears to have been no element whatsoever of these two women attempting anything in full public view, or with the attempt to openly promote any kind of act.

These were not activists, protesters, or exhibitionists of any kind.

How then, in accordance with Mujahid’s (photo) policy, could we justify any sort of punishment on them whatsoever, much less the brutal corporal punishment that they were subjected to?

As a federal minister, Mujahid has a clear role to play here, especially in view of the legal problems raised by the NGO Sisters in Islam. The group said the punishment contravened Section 289 of the Criminal Procedure Code, which prohibits corporal punishment against females.

"However, provisions under the syariah law allow women to be caned. These inconsistencies create confusion in the jurisdiction of the Prisons Department, thus directly affecting the rights of women in Malaysia protected by Article 8(2) of the Federal Constitution against gender discrimination," SIS said.

Moreover, the Prisons Act 1955 and Prison Regulations 2000 stipulate that caning can only be carried out against prisoners and that in the case of the two females, they were not prisoners when the sentence was carried out, SIS added.

SIS said the execution of the sentence raised questions as to who authorised the caning, who carried it out and whether the Home Ministry, which oversees the Prisons Department, had consented to it.

The last paragraph referenced the fact that the caning had been done by a masked female caning officer from the federally-run Kajang Prison - itself another horrifying image.

Barbaric corporal punishment

Malaysia continues to be one of a handful of countries that still employ corporal punishment as part of its judicial system.

A mere glance at the countries which still have this shows us the shameful company we are in.

One irony of this occurring around Merdeka is that many of the countries above are former British colonies.

This barbaric form of punishment, which was no doubt employed as one of many brutal colonial practices, has long been disavowed in the UK itself; but it seems we have been only too happy to take up the devilish canes that they left behind ourselves.

What is the point of independence when we replace the colonials with an equally brutal government of our own, adopting the very worst practices?

There is no doubt that this will once again put Malaysia on the world news map, and again, in the most shameful light possible.

Federal government must stand firm

Yes, there are tough battle lines drawn here, involving different jurisdictions, different cultural norms, and a conflict between federal and state authorities. Taking up the minister’s mantle, though, means that this is what you’ve signed up for.

Taking down pictures from a Merdeka exhibition was already cause for concern, but this cruel violation of the bodies of peaceful Malaysians by a vengeful state is on another level completely.

No one is asking Mujahid to become a rainbow activist, or disavow the teachings of his religion.

Rather, we are asking that he upholds the precepts of that same religion, as well as the policies that he himself has outlined.

This caning was done in violation of federal laws, and can almost be seen as an opposition state looking to test its boundaries against a new federal government.

In a few ways, it brings to mind America in the 1950s and 60s, as southern states looked to resist federal efforts at racial desegregation.

If Mujahid is sincere about government policy, swift and firm action must be taken to ensure that states within the federation do not ever overstep their powers again.

Failure to do so would indicate a weakness in the federal government and encourage even further deviation from federal laws and federal policy.

By all means, allow each state to govern itself in accordance with the laws of the federation. Let them practice self-determination to the full extent allowed by the constitution.

However, do not let the states think that they are free to do whatever they want to their citizens and their bodies, with no regard whatsoever for federal laws.

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NATHANIEL TAN is weary of haters getting in the way of lovers. -Mkini

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