Asylum seekers face caning in Malaysia

Replies to This Discussion

Permalink Reply by Alan Lake on May 26, 2011 at 10:38

The self-contradiction in the UNHRC is astounding:

"The United Nations Human Rights Commissioner has hit out at Labor's asylum seeking deal with Malaysia - warning there's no guarantee refugees sent away from Australia will be safe.

While the government insists the deal complies with the UN Refugee Convention, that document does not cover cruel punishment or torture.

So, the UNHRC will not criticize Malaysia because they are Islamic, i.e. the master race, and above all criticism, in fact, if you criticize them, they'll kill you.  So they'll not criticize those who commit human rights violations directly, but will criticize those who merely pass people into the hands of those who actually commit those violations.  Its a kind of pass-the-parcel with responsibility, where one of the ground rules is the parcel is never allowed to land in the hands of an Islamic body, on principle.

 

"The UN Human Rights commissioner also called on Australian politician to stop 'demonising' asylum seekers."

To cap it all off, Malaysia is allowed to demonize people so much it canes them, but if Australia so much as doesn't give them everything they want, its "demonizing" them.

Permalink Reply by paul collings on May 26, 2011 at 15:34

They cane their own people as well. Although they,re not supposed to as it contravines fedral law. But what we find is that nothing can overrule islamic sharia law. the caning of illigals is ok, so what if that includes asylum seekers. They signed no agreements to say they won,t cane people. Astrailia dosn,t want to be a dumping ground for hundreds of thousands of Asylum seekers/refugees/economic migrants/illigal,s or what every they claim to be, and i don,t blame them. But lets remember The Aussi,s don,t cane anyone.   

 

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 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 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  

Permalink Reply by Alan Lake on May 27, 2011 at 3:39

What a mess.  The usual fog and double talk is used to slip Sharia law into what was a secular civil society.

Permalink Reply by Kinana on May 27, 2011 at 13:55

Paul and Alan, thanks for your comments.  I find the initial story very confusing.  so refugees travel to Australia (from where?) and Australia refuses them entry and sends them to Malaysia.  Right?  Then once there they are subject to being caned for some reason?  Is it because they come from there and their wanting to leave is a criticism of Malaysia? 

 

But then the story says Australia sends them there for processing.  Processing for the purpose of entering Austrailia legally?  Is Australia paying Malaysia for the use of their land for this purpose but also not paying the guards enough money to stop them caning the refugees? 

 

Help?!  someone from Australia needs to clarify for me.  I only have 2 dozen more questions!

Permalink Reply by paul collings on May 28, 2011 at 22:35

Tanveer Ahmed Article
Search smh:
Search in:National Times
smh.com.auWebNational Times. .Malaysia 'solution' is needed desperately May 13, 2011

Comments 46
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Protestors and refugee activists clash with police outside the Maribyrnong Detention Centre are proof of the public's deep feelings about how the nation handles asylum seekers. Photo: Photo by Jason South

After a recent column about the mental health of asylum seekers, I received a flurry of correspondence. The most interesting was from those working within the system in a mental health or policing capacity. They were quite consistent in their views and regretted they hadn't spoken out about the realities before.

Public opinion hardened after the Villawood riots, which exposed a minority of asylum seekers as unwilling to abide by our laws. It also exposed a level of expectation and entitlement that is a core part of the problem.

A psychiatric nurse told me the vast majority of asylum seekers were adamant they were being held illegally. This is a real failure in communication. He also said there was an expectation that nobody would be sent back, which is fuelled initially by people smugglers but then perpetuated by mostly inexperienced case managers from the Department of Immigration and Citizenship.

Advertisement: Story continues below They are mostly right, given that almost four out of five are accepted as refugees, in spite of having no documentation and unverifiable stories. Figures published last week showed more than 80 per cent of asylum seekers arriving in Australia by boat dumped their passports before landing.

A locum GP who had worked at Curtin told me the most needy detainees with pre-existing mental health problems were usually the ones who kept quiet out of fear their condition might sabotage their application.

Other clients with no pre-existing history told of persecution under the Taliban or other groups - sometimes suddenly, many months after their arrival. Interpreters often complained that their stories sounded scripted, stereotypic and rehearsed. But a High Court ruling in 2005 did away with skilled linguistic experts to assess the reliability of such stories in their cultural context.

An Arabic interpreter alleged that lawyers often vied for work in the centres and suggested incidents to clients, such as bullying or assaults by security staff. Several visa holders are suing ASIO for intimidation they felt during their security interviews.

A social worker said many unaccompanied minors - those under 18 without parents or adults - often turned out to be over 25 when biometric testing was done by the federal police. A spokesman for the Immigration Department said that according to its guidelines biometric testing was not given any weight in determining age. But this has reportedly created tension between the two bodies, with many federal police feeling the department is soft.

While I can't verify the stories and the department's responses are bland, the overall picture from within detention centres is of a chaotic system without consistent processes, where exaggeration, fabrication or malingering are rewarded and a growing band of transient advocates up the ante against the government, to educate asylum seekers about their options.

Even with a $40,000 bill from Afghanistan or Iraq, getting to Australia is cheaper than to Sweden or Canada. Getting on a boat is seen as a proven method of relatively quick, procedural entry, particularly when you know the system.

We should accept refugees as part of our international obligations and welcome them. Most asylum seekers aren't likely to be unsavoury people.

But a more dispassionate look at data and a more critical examination of motives and accounts suggests that more than a handful are opportunists exploiting a weakness, for whom asylum is merely the means to migrate to the developed world. The numbers speak for themselves, with a doubling of applications since 2005, while global numbers have declined by almost half, according to the United Nations High Commissioner for Refugees.

As an immigrant, I feel strongly about the issue. While the numbers are small in the context of our total immigration, the symbolism is great. This shemozzle endangers our broader policies of immigration, which I strongly support for the continuing renewal of our cultural, economic and intellectual dynamism - not to mention skills shortage.

The prospect of a better standard of living is the primary motive for migration. As rules tighten around the world, especially for those lacking higher skills, weak spots are exposed. The government's latest move - to swap asylum seekers for refugees from Malaysia - is not an overreaction but a desperately needed strategy to fix a growing leak and policy disaster.

Dr Tanveer Ahmed is a psychiatrist and Herald columnist

Follow the National Times on Twitter: @NationalTimesAU

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Comments
46 comments.

Thanks for a good insight on this issue. Malaysia is one of Australia's closest Ally and a friend of Australia for many years. It is good that Malaysia is coming forward to help Australia on this issue.

The only bad part of the deal is the idea to send out 800 and get 4000 in return. It is better to send 800 and get back 800 and pay Malaysia a lot of money to reduce the boatpeople problem for Australia.


Dr B S Goh | Australian in Asia - May 13, 2011, 8:34AM

All good points but you're wasting your time. Nobody is interested in the merits of this argument. It's all about party politics - black hats & white hats. If you want evidence try to get anyone to declare what is the right humanitarian intake number. Is the current 14,000 (which hasn't changed since the Howard years) about right? Should it be reduced? Increased to 28,000, 56,000, to whatever the demand becomes? Should normal immigration then be reduced to compensate? No one wants to know.


Matt | Neutral Bay - May 13, 2011, 8:53AM

Subjecting children as young as 12 to torture and sex trafficking, is not who we are as Australians. By all means support a regional processing centre, but as Amnesty says year after year, report after report, Malaysia is not the place to do it.

I will not and cannot support a Labor Government.


Salle | Country Victoria - May 13, 2011, 9:22AM

Ha.
I reckon the Malaysians sussed out pretty quickly that Jules was a soft touch, and they decided that they could put one over her. Alas they were correct.
Look at the deal from their point of view. They have a 5 for 1 advantage, and so are STRONGLY MOTIVATED to ensure that the first 800 gets exhausted and that the deal gets repeated. Each time round, they drop their bill for maintaining refugees by 3200 bodies. Think of all the ways they could engineer that outcome.


Yo Gabba Gabba - May 13, 2011, 9:35AM

"The prospect of a better standard of living is the primary motive for migration"

Yes Tanveer, but this is never justification for crossing our borders illegally.

You mention "getting to Australia is cheaper than to Sweden or Canada" - this way of thinking is at the heart of Gillard's mess. Those seeking to escape persecution need only "get away", not "get to". Shopping for a shiny new neighbourhood is NOT asylum seeking.

Malaysia is the next Gillard disaster to unfold and, sadly, Tanveer has gone on the record as a supporter.


Ella | Sydney - May 13, 2011, 10:20AM

I would prefer that all illegal immigrants be deported immediately but given that 80% destroy/lose their passports I can understand that checking their bona fides is well nigh impossible. Putting that aside I agree with your columnist that we could usually expect that most of these people would become good citizens. Where this assumption falls down is in the area of religion and ethnicicity. Most of the unrest we see in the middle east, where most of these "refugees" come from have problems because they are what they are. Democracy and freedom of religion are incomprehensible to them. Bush gave them the chance for democracy in Iraq, they chose civil war. The same will be the outcome in Afganistan. The ethnic ghettos of Sydney's west and southwest are proof that nothing changes even given the chance to live differently. They cannot change or assimilate into western society. their religion does not allow it.


Neville | Sydney - May 13, 2011, 10:43AM

@Ella - When Tanveer wrote "the prospect of a better standard of living is the primary motive for migration", I don't think he suggested it was justified, as you seem to suggest in your comment.

I suggest you would be wise to read more carefully before putting words into the mouths of others. It is clear from the article Tanveer said no such thing.

Is this a mistake on your part, or wanton misrepresentation? To repeat the catchphrase of another well known immigration expert, "Please explain"!


Dave | Sydney - May 13, 2011, 10:52AM

The author and most bloggers here are ignoring the one big question:

Why are we 'cracking down' on boat arrivals when every year there are so many more arrivals by plane that are refugees or irregular migrants or (as opposed to refugees on boats) illegal arrivals?

Its because its easier to identify and target boat arrivals. How weak we are as a society.

All I am seeing here are excuses for our own racism or simple unwillingnessto help someone in need - 'they're Muslims' or 'they're just looking for a better life' or 'they destroy their passports' or 'they'd really be so much happier Malaysia'.

Sad.


jaro | Sydney - May 13, 2011, 10:56AM

The overwhelming majority of Australians want to offer real help to real refugees, and in a fair and orderly manner.
That is why many concerned and caring people , to quote Tanveer, realise that a
"dispassionate look at data and a more critical examination of motives and accounts suggests that more than a handful are opportunists exploiting a weakness"
More than a handful indeed.
Stop encouraging boatloads riddled with pretenders who steal a refugee placement from people in real need.


zippo | mars - May 13, 2011, 11:05AM

If there were many countries with much higher standards of living you wouldn't see anyone here for dust.

I came from a country with a high living standard and was in the process of seeing the world.

When I got to AUS I kind of got stuck here. Meeting my future wife and recognizing some opportunities I could explore persuaded me to stay.

Before I arrived I knew not much about AUS.

Maybe if one spreads the word that AUS is a terrible place to settle the attraction to get there anyway possible would be diminished.

The news that the country desperately needs hands to work sends out the wrong message.

PS. I came by boat. It is just that they called them ocean liners in those days.


Read more: http://www.smh.com.au/opinion/politics/malaysia-solution-is-needed-...