By Imam Feisal Abdul Rauf
ON July 20, the Pahang Syariah High Court sentenced part-time model Kartika Sari Dewi Shukarnor, 32, to a RM5,000 fine and six lashes of the rotan for drinking beer.
No doubt the court has the jurisdiction to impose such a sentence as provided by the law.
Some have questioned the appropriateness of the sentence of whipping given that the court has discretion to impose a mixture of fine, imprisonment and binding Kartika over for good behaviour for a certain period, or just admonish her.
Others have questioned the appropriateness based on the legitimate argument that the Syariah holds Muslims responsible for their actions that result in negative opinions of Islam.
A news item like this certainly presents Islam and Malaysia negatively on the international stage.
But I would urge the Malaysian Syariah authorities to seriously reconsider the Syariah basis of this law on the following Syariah grounds:
Neither the Quran nor the Hadith invokes a penalty for alcohol consumption. The sin of consuming alcohol is described in the Quran in the mildest language of prohibition.
When it comes to dietary laws, the Quran commands the believers in Sura 5:3: "forbidden (hurrimat) to you is the dead animal, loose blood, and the flesh of the pig".
The 90th verse of the same Sura cautions the believers that "wine, gambling, etc, are an impurity so avoid them (fa-jtanibuh)".
Some legal scholars suggest that the divine command ijtinab, to avoid something, is milder language than tahrim, prohibition.
A Muslim consuming a glass of wine with a pork chop commits a more serious offence in eating pork; yet as there is no Quran or Hadith penalty for consuming pork, there is also none for alcohol consumption.
The question then is how did the penalty for alcohol consumption come about?
It occurred during the time of the second Caliph Umar b. al-Khattab. There was a companion of the Prophet (sahabi) who had fought on the Prophet's side in his battles.
A heavy drinker, he would walk the streets of Madina drunk at night and loudly shout scandalous things about people. The inhabitants of Madina complained, and Umar formed a committee to decide what to do.
Imam Ali, based on the man having committed slander, suggested the penalty for slander, whose maximum penalty is 80 lashes.
Since that time, this has been considered the maximum penalty for alcohol consumption, based on utilising the Syariah concept of ta`zir (deterrence).
I disagree with this being the mandatory sentence for the offence of wine consumption, because it is the maximum sentence for another, separate offence - slander - albeit committed under the influence of alcohol.
Had the man just fallen on the street in a stupor and suffered a terrible hangover without having hurt anyone, no punishment would have been established.
Had cars existed then and had he run his car over some pedestrians and killed them, should we invoke ta`zir now and have a penalty for alcohol consumption equal to that of accidental manslaughter?
There are additional arguments we can marshal from the Quran and Hadith. The Quran repeatedly urges Muslims to forgive those who wrong them, even for slander and manslaughter!
When the Prophet Mohamed's wife Aisha was wrongly accused of having committed adultery, her father Abu Bakr sought to have the penalty of libel meted against one of his employees who had slandered her.
God then revealed verse 24:22, urging the believers to pardon and forgive those who have wronged them, so that God would forgive them their own sins.
But I see no evidence that Kartika wronged anybody after drinking beer.
Verse 4:92 gives the penalty for a Muslim accidentally killing another as freeing a slave and paying compensation to the victim's family - unless the family forgoes compensation and forgives the offender.
And if the defendant can't afford to pay, then he should fast for two consecutive months. Accidental homicide is a much greater sin than alcohol consumption; yet the Quran suggests that the victim's family would do well to forgive the offender, and the penalty here is not jail time or corporal punishment, but a two-month fast.
The Quranic and Prophetic teachings are about forgiveness, compassion and positive personal transformation. Sura 48:29 describes Prophet Mohamed's companions as "firm against unbelievers and compassionate to themselves", and this is what I urge the Malaysian authorities to exemplify: show compassion to Kartika and forgive her.
But if the Pahang Syariah court insists on establishing a penalty for the mere consumption of alcohol, why not replace the current law - a maximum penalty of a RM5,000 fine and six lashes of the rotan - with spending RM5,000 on feeding the poor and fasting for six days?
Wouldn't that be more in keeping with the letter and spirit of the Quran and the Prophetic Sunnah?
Were this the case, I have a hunch that many Malaysians who imbibe may voluntarily mete such a "penalty" on themselves - to the benefit of the poor, to the benefit of their own spiritual progress and standing before God on Judgment Day, and to the benefit of the Malaysian Syariah Court's, Islam's and Malaysia's image on the international stage.
(This article is also on Star Online)
Imam Feisal Abdul Rauf is the Chairman of the Cordoba Initiative, an international organisation devoted to improving West-Muslim world relations, and author of "Islam, A Sacred Law, What Every Muslim Should know about the Shariah".