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