This statement is in response to the four new Sections and 21 amendments to the existing punishments under the Terengganu Syariah Criminal Offences (Takzir) Enactment 2001 that will be proposed as reported in Sinar Daily on 26 October 2022: https://www.sinardaily.my/article/182707/islamic-world/islamic-world-issues/four-new-syariah-criminal-offences-to-be-added-under-the-law (Headline: Four new syariah criminal offences to be added under the law)

Sisters in Islam (SIS) and Justice for Sisters (JFS) are concerned over the proposed new sections, amendments and alternative punishments to the existing Terengganu Syariah Criminal Offences (Takzir) Enactment 2001, slated to be tabled at the Terengganu state assembly in November 2022 as announced by the Chief Syarie Judge of Terengganu, Datuk Mohd Wan Zakri Wan Mohd.
The three ‘improvements’ are:

1. 4 new sections which are, witchcraft and black magic, pregnancy or giving birth out of wedlock, women posing as a man and attempted liwat (anal sex or sexual relations between men).
2. 21 new amendments to the current provision by maximising the sentence based on provision 356 for three years jail, RM5,000 fine and six strokes of the cane.
3. Introduction of alternative punishments for the existing provisions.
4. According to Datuk Mohd Wan Zakri Wan Mohd, the Syariah Law Coordination Committee views the three ‘improvements’ to the existing Enactment as necessary given the increasing complex cases dealt by the Syariah Courts on an annual basis. The ‘improvements’ are aimed to strengthen the Syariah law in Terengganu.

According to Datuk Mohd Wan Zakri Wan Mohd, the Syariah Law Coordination Committee views the three ‘improvements’ to the existing Enactment as necessary given the increasing complex cases dealt by the Syariah Courts on an annual basis. The ‘improvements’ are aimed to strengthen the Syariah law in Terengganu.

However, contrary to its intentions, the proposed ‘improvements’ only misrepresent Islam as a punitive religion, instead the inclusive, progressive and tolerant religion Islam is.

Constitutionality of the proposed ‘improvements’

Further, the proposed ‘improvements’ are in violation of the Federal Constitution and international human rights law. For example, the four proposed new sections are in violation of right to health, sexual and reproductive health and rights, privacy, right to identity and self-determination, freedom of expression, freedom of thought, right to education, among others.

These ‘improvements’, undoubtedly, have a chilling effect on the freedom of expression among others, and further discourage Muslim persons from questioning, challenging or even discussing matters of religion, even when the application of the religion appear unjust and incongruous to the changing times and circumstances.

The constitutionality of provisions that criminalise sex against the order of nature and male person posing as a woman, two similar provisions to the four new proposed sections have been contested and found unconstitutional. Case in point, 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.

Similarly, in the review of the Section 66 of the Negeri Sembilan syariah criminal offences, the Court of Appeal found the section being inconsistent with several articles in the federal constitution, in particular articles that protect fundamental liberties, equality before the law, gender based discrimination, freedom of expression and movement. While the Federal Court set aside the Court of Appeal and High Court’s decisions on the constitutionality of Section 66, in Alma Nudo Atenza v. PP & another appeal, the Federal Court judges held that there was an error in the Federal Court decision.1

Systemic impact of criminalisation
Criminalisation of pregnancy out of wedlock has a significant, systemic and long-term impact on women and young people. According to UNICEF’s Situation Analysis of Adolescents, 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 pregnancy and sex 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.

1 “[59] The decision in Titular Roman Catholic Archbishop of Kuala Lumpur (supra) was followed in State Government of Negeri Sembilan & Ors v. Muhammad Juzaili Mohd Khamis & Ors [2015] 8 CLJ 975; [2015] 6 MLJ 736, where the validity of a State Enactment was challenged on the ground that it offended the fundamental liberties in arts. 5, 8, 9 and 10 of the FC. Similarly, the Federal Court held that the challenge could only be made via the specific procedure provided for under art. 4(3) and (4) of the FC. [60] These two cases suggest that a challenge to the constitutionality or validity of a law on any ground comes within the ambit of art. 4(3) and (4). With respect, we are of the view that the wide interpretation adopted is contrary to the clear wordings of the aforesaid articles and is not supported by any consistent line of authorities. (See: Ah Thian (supra), Gerald Fernandez v. Attorney-General, Malaysia [1970] 1 LNS 27; [1970] 1 MLJ 262, Yeoh Tat Thong v. Government of Malaysia & Anor [1973] 1 LNS 180; [1973] 2 MLJ 86, Syarikat Banita Sdn Bhd v. Government of State of Sabah [1977] 1 LNS 125; [1977] 2 MLJ 217, Rethana v. Government of Malaysia [1984] 1 CLJ 352; [1984] 1 CLJ (Rep) 323; [1984] 2 MLJ 52, East Union (Malaya) Sdn Bhd v. Government of State of Johore & Government of Malaysia [1980] 1 LNS 18; [1980] 2 MLJ 143). We are therefore not inclined to follow these two cases. In our view, they were decided per incuriam.”

Alternative punishments
Our analysis of the ‘alternative punishments’ introduced in the Kelantan Syariah Criminal Offences Enactment 2019, have found that these punishments are still punitive in nature and imposed against acts that should not even be criminalised in the first place, raising concerns over further victimization under the law. For example, rehabilitation is imposed against 34 ‘offences’ under the Kelantan Enactment. This includes, for exposing aurat, against transgender and gender diverse persons who are prosecuted based on their gender expression and gender identity, apostasy. These so-called offences are not criminal offences to begin with and punishing them with rehabilitation or community service could further result in deprivation of dignity and freedoms.

Further, arguably, the imposition of “alternative” punishments such as community service and/or rehabilitation goes beyond what is permitted under Act 355 – RM 5,000 fine, maximum 3 years of prison sentence and 6 strokes of cane.

We recommend the Terengganu state government and the Committee to
● Seek technical support from Suhakam, Bar Council and human rights, including but not limited to sexual and reproductive health and rights groups to review the compatibility of proposed ‘improvements’ with the Federal Consititution and human rights and assess its impact on affected communities
● Postpone its plans to table the ‘improvements’ at the Terengganu state assembly in November 2022, pending the Federal Court decision on the constitutionality of the Kelantan Enactment