HOT ISSUE ... CANING OF MUSLIM WOMAN DUE TO DRINKING BEER IN PUBLIC

Excerpts from the Malaysia Insider (dated 28 July 2009)

A model who was ordered to be caned by a Pahang Shariah Court for consuming alcohol in public wants the court to expedite the sentence, which has stirred up a controversy. If her sentence is meted out soon, it could be the first time that a man or a woman is caned under Islamic law.

Women, Family and Community Development Minister Datuk Seri Shahrizat Abdul Jalil expressed shock at the ruling while another woman MP from the Islamist party PAS said she was surprised that whipping of women was sanctioned under shariah law. Muslim lawyers, however, dismissed the criticism, saying they were a challenge and an insult to the Kuantan Shariah Court.

The woman at the centre of the controversy, Kartika Sari Dewi Shukarnor, 32, told reporters she wanted the ordeal to be over soon to move on with her life. “I will accept this earthly punishment, let Allah decide my punishment in the hereafter... The court has yet to tell me when the sentence will be carried out, so I would like to ask them to hasten it. “I truly respect the court's decision... I admit that it's my offence and not that of others, it's not the offence of my parents, not the offence of my other family members,” a teary Kartika told reporters in her home town in Perak yesterday.

She was drinking beer with her husband in a hotel in Cherating, Pahang, two years ago when she was caught by Islamic enforcement officers. She pleaded guilty last year. She was fined RM5,000 and sentenced to six strokes of the rotan by the Pahang Shariah High Court on Monday.

The mother of two, who is married to a Singaporean and is a Singapore permanent resident, paid her fine on Tuesday and decided not to file any appeal. Earlier this year, two others, a 22-year-old waitress and a 38-year-old man, were ordered to be flogged for drinking in public. But both have lodged appeals against their sentences, which means Kartika would be the first person to be caned if her sentence is meted out.

Her husband, who is in Singapore, told The Straits Times that he was unhappy with the sentence. “As a Muslim, I have the right to teach her and punish her myself because I'm her husband. That's what Islam taught us,” he said, adding that he wanted to remain anonymous. “I don't understand why they decided to punish her. I don't think it's fair but let's leave it to God to judge the actions of those people who punished my wife.”

In Malaysia's dual-track system, women convicted under its civil jurisdiction are not caned. But the caning for women under the shariah system is less harsh.

Kartika's father, Shukarnor Mutalib, 60, said the punishment by the court was according to the Islamic laws in Malaysia and that the incident had taught his daughter a useful lesson. But Shahrizat, the Women, Family and Community Development Minister, did not feel it was a fair and just punishment when she expressed shock at the decision, adding that her ministry was following the case closely. Titiwangsa MP Lo'lo Mohd Ghazali, who is also head of the women's wing of the opposition PAS, said that punishment should educate and not cause hurt.

Responding to the criticism, Shariah Lawyers Association deputy president Musa Awang said the judge had made the decision based on provisions of the law. “Any unhappiness with the shariah court decision must be made via procedures provided by law,” he said. “Although the two leaders' intention was to defend women, they should understand the whipping methods according to Islam,” he was quoted as saying in a statement yesterday. He said the rotan used in caning women should not be more than 1.22m long and not more than 1.25cm thick. He also highlighted the “moderate force” used.

My comment

The above news has registered a lot of feedback from the public. However, I don’t intend to provide my personal views in this matter as I believe the Shariah Court judge is a learned and more capable person to lay down the judgement on the facts of the case presented to him.

However, I am more interested to share with you the views of Imam Feisal Abdul Rauf (the author of Islam: A Search for Meaning, Islam: A Sacred Law (what every Muslim should know about the Shariah), and What's Right With Islam: A New Vision for Muslims and the West) on the particular issue . He said :

This is the story of the prophet's companion who would enjoy drinking and when he got drunk, he would go around town of Medina saying slanderous things. So the people got upset about it. So they went to caliph Umar and said [something like], "There ought to be a law against this guy! This guy is saying slanderous things about us!"

Yes, there's no penalty in the Quran for drinking wine, or the hadith, but the guy is committing slander. So saidina Umar consulted, and saidina Ali said, well, when a person drinks alcohol he is prone to commit slander, and in this case this guy committed slander, so we punish him with a penalty for slander, which was 80 lashes.

So the punishment of 80 lashes was not because he consumed alcohol, it was because he was committing slander. This is again an important thing for people to understand, the genesis, or the history of how certain things developed in our jurisprudence. So the application of 80 lashes for the consumption of alcohol is not really a correct application for the consumption of alcohol per se, but rather for a crime committed under the influence of alcohol. So if a person consumed alcohol and committed murder, the penalty would be different.

The same thing happens even under modern law. Let's say in the United States or in some countries, if you drink, there is no penalty.

But if you drink and drive...Then you pay a fine if you get caught. Why? Because driving under the influence of alcohol is considered dangerous. But [paying a fine for] driving under the influence of alcohol, if you have not committed an accident, in fact is like a form of takzir. You're paying a penalty for not having really done any damage yet. But you could.

But if you drive under the influence of alcohol and crash into somebody's property and damage it, then your fine will be much larger. You will be liable for the damage to the property, in addition to the crime of driving under the influence of alcohol. If, because you were drunk, you were involved in an accident where someone was killed, then you will be liable for the diyah, for the blood payment (compensation for murder victim's next-of-kin).

I believe there are others who disagree with Imam Feisal’s opinion, but then again, this is just his opinion….everyone has their own opinions on things but one thing remains – the Muslims must never stray from the teachings in the Holy Quran and Sunnah – only Allah swt knows best!

STRATEGIES FOR ISLAMIC BANKS

Professionals in the Islamic banking sector are often asked whether the current strategies adopted by Islamic financial institutions will prove effective at competing at the global level in the long run. Since a strategy is a plan of action designed to achieve certain goals, its effectiveness can be assessed only in relation to these well-defined goals.

Strategies that improve franchise value

Franchise value is about the solidity of a bank’s market standing in a given geographical market or business niche. A solid and defensible franchise is a key element underpinning a bank’s ability to generate and sustain recurring earnings, to create economic value and, thus, to preserve or improve risk protection in its chosen markets.

The Islamic brand is economically valuable; in many instances Muslim depositors will happily pay a small premium for conducting their finances in what they perceive to be an ethical way. With a large addressable population and relative immaturity there is still scope for solid long-term growth.

It is believed that strategies leading to sustainable entrenched market position, improved geographical and earnings diversification, and increased earnings stability can enhance a bank’s long-term franchise value.

Size is important because diversification is harder to achieve when an institution is small. It should be noted, however, that a bank dominant in smaller but more favourable markets may have a higher franchise value (which could translate into greater earnings stability) than a bigger bank with a highly price-sensitive customer base in a competitive market.

It follows that it is better for Islamic banks to have a strategy that helps achieve a stronger position in a few selective markets than one which results in marginal positions in many competitive markets.

Strategies that improve risk positioning

A bank’s risk positioning is a fundamental qualitative factor in a credit analysis; the current credit woes apparent in the global market once again highlight its importance. In this regard, strategies that improve corporate governance, controls and risk management, financial reporting transparency, credit risk concentration, liquidity management and strategies that set a conservative market risk appetite are considered favourably.

Improving risk positioning is particularly relevant. Although Islamic banks are able to pass through a negative shock on the assets side to the investment depositors, displaced commercial risk is at stake.

Islamic banks have a number of buffers to manage displaced commercial risks. These are profit equalisation reserves which contribute to smooth earnings across the cycle; investment risk reserves which absorb negative shocks on asset values; Mudarib fees which can always be decreased in a discretionary manner to avoid penalising the depositing Rab al Maal; and shareholders who can always provide Qardh Hasan to profit-sharing depositors. In a stress situation, those IFIs sufficiently equipped with such mitigating instruments would be considered more resilient to downturns.

Nonetheless, to date few, if any, Islamic banks have passed on losses to their depositors. If the buffers mentioned above are inadequate, the IFIs could experience funding pressure as deposits are moved to other financial institutions.

Additionally, Islamic banks tend to have greater concentration in assets and liabilities compared with conventional banks. They also face challenges in managing liquidity and risk due to the limited range of instruments available.

Moreover, Islamic products are less commoditized and require more tailoring and oversight, and this leads to substantial overheads and operation risk.

Strategies that improve financial fundamentals

Normal analysis of a bank’s financial fundamentals can be broken up into five sub-factors, namely profitability, liquidity, capital adequacy, efficiency and asset quality. Some financial metrics necessarily reflect a bank’s franchise value and risk positioning, but a prudent financial policy also plays an important role in shaping these numbers.

For instance, a bank with a strategy to maintain a conservative financial policy is likely to keep its capital and liquidity ratios higher than most of its peers. The result is a stronger balance sheet and which can better withstand adverse economic cycles. For Islamic banks with significant exposures to equities and properties, conservative financial leverage is particularly important in view of the volatility in the values of these investments.

Most of the strategies of Islamic banks try to achieve profitable asset growth. The differences in their strategies mainly reflect the state of development of Islamic banking and their positions in their respective home markets, their aspirations for the medium and long term, and the resources they have.

BAY AL-DAYN IN MALAYSIA

Bay al-dayn is an Arabic term for “sale of debt” as originated from two words; bay’ which means sale, while dayn means debt. As far as bay al-dayn is concerned, it simply means a sale and purchase transaction of a quality debt.

The selling of debts is to avoid the occurrence of riba between two debts and also to avoid any kinds of gharar and makhatara which may arise at the level of inability of a buyer from possessing what he has bought as it is not permitted that the buyer sold before actual receipt of the purchased item.

On 21st August 1996, The Malaysian Securities Commission Shariah Advisory Council passed a resolution unanimously agreed to accept the principle of bay al-dayn as one of the concepts for developing Islamic capital market instruments. This was based on the views of some of the Islamic jurists who allowed this concept subject to certain conditions for instance there is a transparent regulatory system in the capital market to safeguard the maslahah (public interest) of the market participants.

Opinion of the past Islamic jurists

Hanafi Mazhab

The Hanafis are unanimous in not permitting bay al-dayn with reason that the debt is in the form of mal hukmi (intangible property) and the buyer takes great risk because he cannot own the item bought and the seller can not deliver the item sold.

Maliki Mazhab

The Malikis allow bay al-dayn subject to certain conditions as follows:

a) Expediting the payment;

b) Debtor present at the place of sale;

c) Debtor confirms the debt;

d) Debtor belongs to the group that is bound by law so that he is able to redeem his debt;

e) Payment is not the same type as dayn, and it fit so, and the rate should be the same to avoid riba;

f) The debt cannot be created from the sale of currency (gold and silver) to be delivered in future date;

g) The dayn should be goods that are saleable even before they are received. This is to ensure that the dayn is not of the food type which cannot be traded before qabadh occur; and

h) There should be no enmity between the buyer and seller, which can create difficulties to the debtor.

Shafi’i Mazhab

The Shafi’i allows the selling of debt to a third party if the dayn was mustaqir (guaranteed) and was sold in exchange for goods that must be delivered immediately. The debt is sold; it must be paid in cash or tangible assets as agreed.

The Securities Commission Shariah Advisory Council held that in the context of the sales of securitized debt, the characteristic of securities differentiates it from currency. It is not a legal tender and therefore, it is not bound by the conditions for exchanging of goods. It is not a ribawi item as the fifth condition set by Maliki mazhab.