Amendments to the Terengganu Syariah Enactment 2022 Violates Rights

We, the undersigned groups, are concerned over the amendments to the Terengganu Syariah Criminal Offences Enactment 2022 that was passed on 2 December 2022. According to the Terengganu state assembly proceeding on 28 November 2022, the amendments include:

● Amendments to 21 of 69 existing sections to increase their punishments
● Introduction of 4 new sections
● Introduction of 2 new sub-sections

While the latest Enactment is not publicly available, media reports proceeding of the Terengganu state assembly proceeding on 28 November 2022 provides some details of the amendments. Based on media reports, among the six new sections and subsections include:

Pregnancy out of wedlock (Section 29A). The Hulu Besut state assembly person from Barisan Nasional raised concerns over the criminalization of pregnancy out of wedlock. He even called for the amendment to be delayed, as there are other approaches to address pregnancy out of wedlock through consensual sex. In response to questions about the effect of the law on pregnancy out of wedlock as a result of sexual assault, the chairperson of the syariah, education dan higher education in Terengganu, Datuk Saiful Bahari Mamat stated that Syariah Court can determine whether the pregnancy was based on sexual assault or based on consensual consummation. The criminalization of pregnancy out of wedlock not only places unnecessary trauma but burden and shame the survivors of sexual assault and others.

UNICEF’s Situation Analysis of Adolescents shows pregnant teenagers are denied access to education due to stigma and shame, resulting in them dropping out from school. Conversely, the study also cites a 2015 nationwide study that showed a very low knowledge on how to prevent unplanned pregnancies and lack of awareness of contraceptives methods, aside from condoms and birth control pills of young people between 18 and 29 years old.

The study also shows Terengganu is one of three states with the highest cases of child marriages applications via the syariah courts. Sisters in Islam (SIS) and ARROW’s research shows sex and pregnancy out of wedlock being one of the main contributing factors to child marriage in Malaysia. As such, the criminalisation of pregnancy out of wedlock also has reciprocal effect on child marriage, and contribute to an increase of child marriage, perpetuate the cycle of poverty and illiteracy among girls.

Sorcery (Section 3A) to ensure Islamic treatment is in line with Islamic principles. A 2018 report by the Independent Expert on the enjoyment of human rights by persons with albinism recommends that there should not be a blanket ban on ‘witchcraft’ and ‘sorcery’. Instead guided by international human rights law, the state should focus only on harms caused by sorcery.1

Female person posing as a woman (Section 33A). Since 2019, two states have introduced similar laws. Laws that criminalize persons on the basis of their gender identity and gender expression are unconstitutional as they violate multiple rights guaranteed under the Federal Constitution, including the right to equality and non-discrimination, freedom of expression, freedom of movement, and right to live with dignity.

Act of preparatory to liwat (Section 36A). It is important to note that the Federal Court, in the constitutional review of Section 28 of the Selangor Syariah Criminal Offences Enactment which criminalises sex against the order of nature, found the provision to be ultra vires, as it violates Articles 73, 74, and 75 in relation to Federal and state jurisdiction in relation to law-making.

In decision, the Federal Court affirmed that “[46] If we were to adopt the rather simplistic approach advanced by the respondents that it is sufficient to simply satisfy ourselves that Section 28 of the 1995 Enactment is squarely encapsulated within the definition of ‘precepts of Islam’ without regard to the preclusion clause, that would render the preclusion clause otiose.”

● Indecent attire in public place also penalizes persons for not covering their aurat or modesty according to Datuk Saiful Bahari Mamat. This provision blatantly violates freedom of expression, equality and non-discrimination, guaranteed under the Federal Constitution.

The amendments to the Enactment further exacerbate existing harmful impacts on women, young people, LGBTQ persons, among others. Malaysia as a party to Convention on Elimination All Forms of Discrimination Against Women (CEDAW) and the Convention on Rights of the Child (CRC) has the obligation to eliminate all forms of discrimination against all women and children in all of their diversity.

Given the harms of the amendments and its inconsistencies with the rights guaranteed under the Federal Constitution, we urge Suhakam to undertake a human rights impact assessment of the latest version of the Terengganu Syariah Criminal Offences Enactment 2022.

1 “Report of the Independent Expert on the Enjoyment of Human Rights by Persons with Albinism on the Expert Workshop on Witchcraft and Human Rights.” A/HRC/37/57/Add.2, 2018, www.un.org/en/ga/search/view_doc.asp?symbol=A/HRC/37/57/Add.2.

Sources:
Terengganu state assembly 30 November
https://www.youtube.com/watch?v=gTsgdVzhjwE

Terengganu state assembly 1 December
https://www.youtube.com/watch?v=rzOsV_IAXeQ

Sorcery law to ensure medical treatment is lin with Islamic principles
https://www.youtube.com/watch?v=DWdYb0crRkE

Endorsements:

  1. All Women’s Action Society (AWAM)
  2. Centre of Independent Journalism (CIJ)
  3. Federation of Reproductive Health Associations, Malaysia (FRHAM)
  4. Freedom Film Network (FFN)
  5. Justice for Sisters (JFS)
  6. KRYSS Network
  7. Perak Women for Women Society (PWW)
  8. Persatuan Kesedaran Komuniti Selangor (EMPOWER)
  9. Reproductive Rights Advocacy Alliance Malaysia (RRAAM)
  10. Sisters in Islam (SIS)
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