Memorandum On the Syariah Criminal Code (II) 1993 State of Kelantan

25 December 1993
The Honourable Prime Minister
Datuk Seri Dr. Mahathir Mohamad

Assalamualaikum wr. wb.

Dear Sir,

Memorandum On the Syariah Criminal Code (II) 1993 State of Kelantan

We, Sisters in Islam, write to you to express our deep concern at the passing on 25 November 1993 of the Kelantan Syariah Criminal Bill (H) 1993. This Bill was passed unanimously by all 36 State Assemblymen, including two from the Barisan Nasional.

1. The Kelantan Code This Code discriminates against Malaysian women in several of its parts, including:

  •  the grounds for presumption of zina in clause 46(2);
  • the disqualification of women as eye-witnesses in clause 41(1);
  • the termination of a marriage by a husband’s accusation of zina (al-li’an), whether proved or not, against his wife in clauses 14 and 15; and
  • the implied endorsement in clauses 2(i) and 62 of the view that diyat or compensation for death or injury to a woman should be half that for a man.

The Code also has other troubling features, including:

  • the imposition of the death penalty for apostasy;
  • the uncertainty of cases where – the victim is of a faith different front the perpetrator of the crime; and/or – the witnesses to the crime are not Muslims; and/or – the co-perpetrators are of different faiths,
  • the Code’s relation to the provisions of the Penal Code. Some offences under the Code are also federal law offences, giving rise to issues of double-jeopardy where both laws are enforceable.

The drafters of the Kelantan Code have declared that a person convicted under it would not be tried again for the same offence under the Penal Code, but they have explicitly confirmed that further action might still be taken under the Penal Code following an unsuccessful prosecution for the same offence under the Kelantan Code.

That is, advocates of the Kelantan Code assert that an offender might not be punished twice, but only tried twice (following a first and unsuccessful Shari’a prosecution) for the same offence. Even so, this remains double-jeopardy. Whether the advocates of the Kelantan Code can speak for those implementing the Penal Code – and whether the latter are in any way constrained by the explanations of the former from bringing a second prosecution following a prior Shari’a prosecution, successful or unsuccessful-remains unclear, or compounding the problems of double-jeopardy posed by the Kelantan Code.

The hudud provisions emerged as opinions of lawyers (fuqaha or jurists in Muslim jurisprudence). Formed through a methodology of interpretation (ijtihad, qiyas), their views were given subsequent sanction through the political-legal process through ijma’, or the consensus of the jurists of a particular time and place (but consensus is not unanimity), or through a majority opinion (jumhur). These processes are human efforts, not devine injunctions.

Even before its enactment by the State Legislative Assembly, those promoting the Code took upon themselves to pass judgements of apostasy on those who oppose it (as reported in New Straits Times 19 October 1993: enclosed). The fact that these invidious pronouncements were made outside a court of law only increases legitimate doubt concerning the manner in which these laws are likely to be implemented.

2. Traditional Shari’a and Contemporary Malaysian Society We live in a plural society. Malaysia has made its mark in today’s world through the wise guidance of its leaders since 1957. We have built in our society a culture of tolerance, respect for others and, no less notably, the emancipation of Muslim women consistent with an enlightened understanding of Islam. In no other country which calls itself Muslim do women enjoy the same freedom of movement, association and education as in Malaysia.

The questionable impact of implementing Muslim criminal law, upon women and upon society generally, has been documented in a number of Muslim countries. However well-intentioned, its implementation has in practice proved problematic.

Malaysia neither needs nor deserves the widespread criticism that some other countries have received from moderm Muslims and Islamic human rights lawyers worldwide. The enforcement of such laws leaves rape victims who are unable to provide four male witnesses liable to prosecution. Women in custody are also often exposed to systematic abuse while in detention or awaiting trial. Disquietingly, the Code in its formal aspects, closely resembles those laws under which abuses of this kind have occurred elsewhere.

The question is: should we as mere humans, insist upon the imposition of hadd laws when they should remain as Haqq Allah, a matter solely between the believer and the Almighty.

The Penal Code provisions (which can be classified as ta’azir laws) that are presently enforced have served Malaysia well, and there is nothing in the Penal Code which is in principle contrary to the Muslim faith.

3. Vision 2020, Islamic Modernity and Re-thinking of the Shari’a Our push, as a country and nation, towards industrialisation envisages the creation of a fully moderm society based upon a Malaysian culture of modernity. This is clearly outlined in our own Wawasan 2020. Central to an authentically Malaysian modernity must be an Islamic culture of modernity.

The anachronistic enforcement of premodern understandings of Islamic law, as in the Kelantan Code, seems hardly congruent with any principled project for the modern sosiolegal realisation of enduring Qur’anic imperatives. Those who codified Islamic law in its premodern forms were simply human beings who sought to offer the best understanding of the Qur’anic ethic that was possible for them in their time.

We, in our time, are required and entitled to do no less. In fact this is our dakwa, and we are compelled to make better efforts than our forebears.

All the great changes that have led to the emergence of the moderm world provide this generation with opportunities to understand and actualise Islam in ways that were not available to our predecessors. They provide enlightened Muslims of this era with unprecedented opportunities to seek the realisation of the essential and universal message of Islam. In particular, as we progress, we must endeavour (jahd) to give expression to Islam’s sociolegal aspirations a far more profound and just form than was ever possible under the constraints and circumstances that limited even the best and most noble thinkers of earlier Islamic civilisation.

4. Recommendation Accordingly, as Muslim women, Sisters in Islam request that any action by the Federal government enabling implementation of the recent Kelantan Code should be postponed until the issues raised here are adequately addressed. We urge that

1. The legitimacy and acceptability of the juristic opinions upon which the Code is based be reviewed;

2. The question whether the views upon which the Code is based are prejudicial to women, and whether they accord with current enlightened and progressive Islamic sociolegal thinking, be closely examined; and

3. The feasibility, advisability and likely impact of the Code within our plural society be considered in detail before any action is taken permitting its implementation.

We enclose for your perusal,

1. Our papers on the Bill (as it then was) that were presented for discussion on 10 November 1993 at an ISIS Forum entitled “Women and the Syariah Criminal Bill (11) 1993 [Kelantan]”

2. Additional material on evidence of women, diyat and apostasy;

3. Selected newspaper clippings on the issue; and

4. Our Sisters in Islam brochure.

We respectfully urge your careful consideration of the matter, and thank you for your attention.

Wassalam, Sisters in Islam Kuala Lumpur