The jurisdiction of the Syariah Court must be made clear


9 Sep 2018, 9:36 pagi

Updated 2 years ago


LETTER | G25 regrets that the Terengganu government proceeded with the public caning of the two Malay women who apparently had pleaded guilty to the Syariah Court for attempting same-sex relations and were sentenced according to the state’s Islamic law on lesbianism.

Many have suggested that if the two women had been properly represented by competent lawyers, they might not have pleaded guilty. After pleading guilty, they were still caned in front of a crowd, suggesting that the court was intent on making them an example to other Muslims.

The punishment made world news with the comment that the Malaysian state is the second in this region after Acheh to impose public caning under the strict Islamic code on moral offences. 

It puts Malaysia in a bad light because the religious excesses are seen as an effort to show the supremacy of Islam. Questions will be raised both in the country and abroad where the country is heading to in its system of justice under a constitutional democracy.

We are encouraged to see that our Prime Minister Dr Mahathir Mohamad is taking a strong stand against this medieval form of punishment. Speaking on video, he informed the country that the matter was discussed in cabinet as it has become a major controversy among the public.

He said the caning makes Islam look like a cruel religion which only teaches about punishing and not about love, compassion, and forgiveness, thus damaging Malaysia’s image as a moderate and tolerant Muslim country.

There have also been positive statements by the new government that it intends to sign the remaining international conventions on human rights and that it will practise a more humane and moderate approach to Islam with emphasis on justice and compassion in line with the principles of wassatiyah (moderation) and maqasid al-syariah (objectives of syariah).

The mufti of Perlis has also spoken out on video to dispel the belief among Muslims that caning is God’s law. He said there is no mention anywhere in the Quran and in the hadiths about caning as a punishment. 

He therefore said it is wrong to say that caning comes from God. The caning in Terengganu was a decision of the Syariah Court, and had nothing to do with God.  

Minister in the Prime Minister’s Department, Mujahid Yusof Rawa, commented that Syariah Courts should weigh all the factors in making their decisions, because they are the face of Islamic law. He urged that courts should take into consideration the mitigating factors before passing judgement.

We in G25 call upon the federal government together with the Council of Rulers to take the progressive stand that it is wrong for state governments to criminalise the moral sins of Muslims, because the criminalisation of their personal behaviour violates the fundamental liberties guaranteed under the Federal Constitution.

It results in state-sponsored discrimination, harassment and humiliation of women, LBGTs, and the Syiahs. It also leads to abuse of power by religious authorities who are bent on punishing those who disagree with them or their fatwas. 

Our opinion in G25 is that looking at the wording in Item 1 of the State List (List II of the Ninth Schedule) of the Federal Constitution in reference to Syariah Courts, which states that they "shall not have jurisdiction in respect of offences except in so far as conferred by federal law," and considering that there is mention only of the sentences (three years' imprisonment, RM5,000 fine and whipping of six strokes of the rattan) in the Syariah Courts (Criminal Jurisdiction) Act 1965 (Act 355), but not the offences applicable to the sentences, there is a need for Parliament to review the existing legislation so as to make clear its intent and scope.

Currently, without a clear definition in federal law, states are making their own fatwas to criminalise offences which they decide to be against the 'precepts of Islam', with adverse implications on the country’s multiracial society and its international obligations on human rights. 

As crimes are a Federal matter under List I (Federal List), states should not be allowed to criminalise moral behaviour against the 'precepts of Islam' as this will complicate the system of justice. In reviewing the legislation, parliament should take the opportunity to delete the provision empowering the Syariah Courts to impose the sentence of whipping.

The syariah offenders are not criminals because their transgressions in personal behaviour or speech do not pose a threat to life and property nor to the peace and security of the country. State religious departments should be humane and focus their dakwah (missionary) activities on counselling offenders to return to the right path so that they may become good Muslims.

As many Islamic scholars have stated, the morality laws passed by state legislatures are not divine. They are man-made laws created by religious officials who are public servants.  As such, all Malaysians, including non-Muslims, have a right to question from the policy point of view whether the religious laws need to be reviewed and adapted to suit the changing times so that they can be relevant to the modern economy and current styles of living.

The reality of the Malaysian economy, like in all emerging economies, is that women are becoming more educated, enabling them to play an increasingly important role in the workplace.

Gender diversity and equality of treatment between the sexes are recognised as essential for achieving results in both the private and public sector. Faced with these realities, the unreasonable restrictions on women and the harsh laws to regulate the private life of Muslims will have a negative impact on the economy.

The tourist industry will suffer when foreigners feel there are too many risks in travelling to the east coast states because no one can be sure whether the syariah laws apply to them as well or whether the religious police will be crawling in the hotel corridors to peep into their bedrooms.

Beach tourism, recreational holidays, music festivals and cultural shows offer the best potential for generating economic activities in these states. With all the rural charm to attract high spenders from the region and the whole world, their political leaders should take a realistic view that if businesses find it too risky to invest because the state policies are too conservative on moral values, the companies will move their operations out to other states.

The east coast states will find that with economic stagnation, their youths will have no jobs, crime rates will rise, drug addiction will spread, girls will go into the sex industry — these are social problems which are far more important to worry about than the private morals of Muslims.

The state governments should worry more about their responsibility to meet the expectations of their people for a better life in this world and leave it to Muslims themselves to take care of their destiny with God in the next world.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.