The swish of a cane against a human back heralded a new era in the East Malaysian state recently, threatening its customs and traditions
He got a whipping last Oct 10.
Last March, a syariah court convicted him of having unlawful sex with an Indonesian Muslim woman at his kampong in Kota Belud district, about an hour’s drive from the state capital. The court also sentenced the father of five to a year’s imprisonment.
Suryati received the same sentence, but she is out on bail pending appeal. Two of her children were fathered by Kabayan.
The two were arrested last year after villagers complained to the Sabah Islamic Religious Affairs Department about their illicit affair.
They were charged with committing unlawful sexual intercourse under Section 80(1) of the Syariah Criminal Offences Enactment 1995, for which a person can be fined up to RM5,000 or jailed for up to three years or lashed with six strokes of the cane or made to suffer any combination of the penalties. Before Kabayan, no one in the state had faced any of the three punishments.
Islamic authorities hinted last year that they would be harsh against offences that most Sabahan had always viewed as private and personal moral choices, but few thought much of the warning.
They should have known better.
Some Muslims in the state were taken aback by the whipping of Kabayan.
Before the waves of conversion in the 1990s, Sabah was predominantly populated by Christians. Village affairs and scandals were always left to the village chiefs or native courts to sort out.
The harshest punishments they meted out affected only the pockets of offenders. A fine of a few head of buffaloes or some other livestock was common, although native courts could also impose prison sentences.
The “adat”—native customs and traditions—controlled everyone’s behaviour, especially in the kampongs, and was strictly enforced through appeasement or compensation known as “sogit” for financial loss, humiliation or embarrassment suffered by plaintiffs.
Symbol of wealth
Indeed that was the case just last year when a tribal court in another district of the state fined a man and his lover four buffaloes and a pig as punishment for an offence similar to Kabayan and Suryati’s. Everyone was compensated, including the village where the offence was committed.
Livestock, especially buffaloes, have always been considered a symbol of wealth in Sabah. They serve as dowries as well.
Now that Islamic authorities have decided to enforce syariah law on Muslims, especially in the kampongs, the old ways will be diluted.
The Daily Express reported on its front page on Oct 11 that 10 senior officers from the Sabah Syariah Judicial Department, headed by Head Registrar Samal Muji, witnessed Kabayan’s caning at the Kepayan Prison in Kota Kinabalu.
According to the paper, Kabayan initially challenged the sentence but subsequently withdrew.
“This is the first syariah case in Sabah where a Muslim man has been caned,” Samal was quoted as saying.
“This syarie caning is not to cause pain to offenders, but to make them realise their offences and to serve as a lesson to other Muslims to stop committing the same act and to repent before it is too late.”
He said Kabayan was “whipped on his back by prison officers”, unlike offenders in civil law, who are caned on their bare buttocks, breaking the skin and leaving permanent scars.
Caning with rattan canes has been used for decades in corporal punishments in Malaysia, Singapore and Brunei.
In 2009, Kartika Sari Dewi Shukarno, a 32-year-old mother of two, became the first woman Malaysia to face caning for drinking alcohol, but the sentence was postponed and then reduced to community service following a public uproar.
Enforcement officials of the Islamic Religious Department arrested Kartika for drinking beer at a hotel lounge at a beach resort in Pahang in December 2007.
The syariah court sentenced her to six lashes in what was considered a warning to other Muslims to abide by religious rules.
Islamic officials had taken Kartika into custody and were driving her to a women’s prison for the caning when they abruptly turned around and sent her back to her family home in northern Malaysia, setting in motion a series of behind-the-scenes moves to commute the sentence.
Pahang’s syariah law provides for a three-year prison term and caning for Muslims caught drinking.
The rich and famous
Most previous offenders were fined and no woman has ever been caned and most citizens were surprised at the verdict against Kartika.
Observers have also noted that the rich and famous have got off with relatively light sentences for similar offences although Islamic officials have defended the enforcement of religious law as necessary to uphold Islamic values.
In April last year, Kinabatangan MP Bung Mokhtar Radin, 51, pleaded guilty at the Gombak Timur Lower Syariah Court in Kuala Lumpur to committing polygamy without consent of the court.
His second wife, actress Zizie Izette A Samad, 32, also pleaded guilty to entering a marriage without the consent of a marriage registrar.
The MP was sentenced to one month in prison and fined RM1,000, but the jail term was set aside on appeal.
Judge Mukhyuddin Ibrahim reasoned that a man guilty of polygamy without consent should not be served a jail sentence because of concerns that it would affect his responsibilities to his family.
He also took into account that “the reputation and image of appellant as a member of parliament would be viewed negatively by society” if the prison sentence was imposed.
Amnesty International, Malaysian lawyers and some politicians have condemned the harsh syariah punishments and critics have warned it would tarnish Malaysia’s image as a moderate Muslin country.
Thousands of natives in Sabah and Sarawak have converted to Islam since the formation of the Malaysian Federation in 1963.
Many became Muslims to improve their career prospects in the civil service and at the behest of government officials. But few knew or even considered their obligations under their new religion and the severe penalties they faced for transgressions. For instance, the Quran prescribes flogging for fornication. But all this was alien to the Islam practiced in Borneo.
How does one reconcile liberal democracy with the notion that such questions have been settled forever by divine revelation?
Muslims commentators acknowledge that the issue is complex.
If the Quran is a revelation from God, then its injunctions cannot simply be dismissed as outdated. Some believers would like to apply Islamic penalties to the letter.
But, apparently, a distinction can be made between commands given in a certain context, and those that hold good for all time. And quite a number of Muslims, including rather conservative ones, have been quite imaginative in rereading some of Islam’s legal and penal traditions.
An outspoken local Muslim politician, Amde Sidik, believes that Sabah Islamic authorities are merely mimicking the robust Islamising efforts of their counterparts on the peninsula to prove that they are as pious in the “Wild East”, as Sabah is sometimes known.
Another commentator who signed himself as Hamba Allah (God’s Servant) said he was dismayed by the caning of Kabayan and called it a step backward for Sabah Muslims.
He argued that such decisions by the syariah court signalled “a move towards hardline and inhuman application of the principles” of Islamic laws, devoid of any understanding of context or notion of universal justice.
“It is common ignorance among Muslims in Malaysia that syariah law is static and must be preserved in the context of 7th century Arabia,” he said. “Nothing can be further from the truth.”
In his opinion, laws implemented in Europe through the European Convention on Human Rights adhere much more closely to Islamic principles than the syariah laws practiced here.
“So long as there is a dual justice system in Malaysia, there will always be discrimination,” he said.
“It is unrealistic and uncivilised to implement a form of law that was crafted by scholars from the 7-8th century Arabia in 21st century Sabah”, whose population has always been multi-religious.
Kabayan’s punishment was for a crime of moral conduct, he pointed out.
“The fact that his five children will be fatherless for a year for a ‘crime’ which concerns only his personal life seems not to have been taken into account by the syariah court….Where is the justice for those collaterally affected by such a decision?”
Sabah’s normally vociferous politicians have chosen to remain silent on Kabayan’s whipping.
This may be because of the meeting of two seemingly conflicting trends — the development of a pluralist competition in a quasi-democratic system and a sharpening of ethnic and religious divisions. Malaysian politicians use the divisions as a way of staying in power.
Meanwhile, with every year that has passed since Sabah and Sarawak joined the Malaysian Federation, it has become more fashionable to argue that the two states, having relinquished their political independence, are also losing their cultural identity.
The caning will undoubtedly raise tensions between religious conservatives and the religious liberals and secular elements in society.