Memorandum to the Government on Repeal of the Syariah Criminal Offences Act based on Constitutional and Islamic Legal Theory and Practice Perspectives

Submitted by Sisters in Islam to the Minister in the Prime Minister’s Department and to the Attorney-General on 17 October 2005

This memorandum is submitted to the Government of Malaysia to reiterate our call for the Syariah Criminal Offences laws to be repealed on the grounds that they have no basis in Islamic legal theory and practice; they conflict with the Federal Constitution and that they conflict or overlap with the Penal Code and other federal laws.

We hope the Attorney-General’s Chambers in conducting the review will seriously consider the compelling arguments presented below, put forward by Professor Muhammad Hashim Kamali and Prof Shad Saleem Faruqi, from two studies commissioned by Sisters In Islam (SIS).

Background

The Syariah Criminal Offences legislation was first introduced in the mid-1990s in the various states and federal territories. But it was not until 1997 that the gravity of the laws introduced became public knowledge when three young Muslim women taking part in a beauty contest were arrested and charged for violating a fatwa and for indecent dressing.

As a result of the public outcry over the arrest, Sisters in Islam conducted a research and consulted scholars on Islamic and constitutional laws. SIS submitted a memorandum to the Government on the Syariah Criminal Offence Act and Fundamental Liberties in August 1997 where we raised our concerns on several areas criminalised by the law:

1. It is a crime for a Muslim to defy, disobey or dispute a fatwa once it is gazetted.

2. It is a crime for a Muslim to print, publish, distribute, or possess books contrary to Hukum Syarak.

3. It is a crime to insult Islam or the religious authorities. What constitutes an “insult to Islam” is not defined. In the case of one pub singer, being in a place that served alcohol constituted an insult to Islam;

4. It is a crime to act or behave in an indecent manner in any public place. What constitutes “indecent manner” is not defined. It has included to “hold a woman’s waist in a shopping complex” and “sit closely together and hold hands”. Hundreds of Muslim women and men, mostly young, have been arrested and charged under this provision.

• They have no basis in Islamic legal theory and practice;
• They conflict with the Federal Constitution;
• They conflict or overlap with the Penal Code and other federal laws.

In Terengganu, the Syariah Criminal Laws were further amended by the PAS government in 2001 to make it a crime for Muslims to fail to perform their five daily prayers, for a woman to reveal any part of her aurat that arouses passion in the public space or for a virgin woman to abscond from the guardianship of her parents without a reasonable justification valid under hukum syarak.

As a result of the 1997 memorandum, then Prime Minister Datuk Seri Dr Mahathir Mohamed ordered a review of the SCOA. SIS met with the then Solicitor-General to submit our memorandum and other documents that could assist the review. We have not heard any news since then on the outcome of that review.

Continuing Controversies in Enforcement

A law that turns “sins” into crimes against the state raises numerous difficulties in its conception and enforcement. It is no wonder that several controversial incidents have erupted over the enforcement of this law and other related morality regulations in Malaysia. (see attachment on chronology of events). This has ranged from the arrest and charging of a pub singer for being in a place that served alcohol, to a young Chinese couple charged with indecent behaviour under park bylaws, to the attempt by the Malacca Chief Minister to form “snoop squads” to help the religious authorities to arrest couples for “khalwat”.

Numerous other cases of abuse remain unreported. For example, earlier this year, SIS received a complaint from a traumatised young woman in Ipoh who was arrested for “khalwat” in her office because she was alone working overtime on a Sunday with her non-Muslim boss. We have also received complaints from young women who have been charged for “abetment to khalwat” for being in the same house where khalwat allegedly took place, even though they were not aware that a roommate had brought home a male friend in the middle of the night while they were asleep.

This current review is a result of another public outcry, this time over the arrest of 100 young Muslim men and women at the Zouk discotheque earlier this year. They were subjected to verbal abuse and humiliation in the lockup. Most of the charges and summons were dropped because they were based on nonexistent provisions in the SCOA.

The areas outlined above are only a few of the many areas of concern regarding the Syariah Criminal Offences laws and related morality regulations. We have called for a review and repeal because: 3

We hope the Attorney-General’s Chambers in conducting the review will seriously consider the compelling arguments put forward by Professor Muhammad Hashim Kamali, Dean, Institute of Islamic Thought and Civilisaton and Prof Shad Saleem Faruqi, Professor of Law and Legal Adviser at UiTM, in the two studies commissioned by SIS. (Prof Shad’s paper is enclosed, while Prof Kamali’s paper was sent in February)

Both studies concluded that the Syariah Criminal Offences legislation of the Federal Territories and all the states are seriously flawed at both the constitutional and Islamic legal theory and practice levels. The substance of the law and its implementation have raised numerous profound issues that have long remained unresolved. Sisters in Islam urges the Government and the Judiciary to display the political will and judicial courage needed to uphold the Malaysian Constitution which remains the supreme law of the land.

Below is a summary of the problematic areas as laid out in the two studies:

I. THE SCOA FROM AN ISLAMIC LEGAL THEORY AND PRACTICE PERSPECTIVE

1. Turning Fatwa into a binding instrument. Fatwa in Islam is not a binding instrument, but a voluntary and optional concept that has been turned into an instrument of mandatory and binding rule-making in Malaysia. This is unprecedented in Islamic legal practice. Fatwa under Syariah is also a vehicle that facilitates free flow of thought and expression on Syariah-related issues, whereas in Malaysia it has become an instrument of restriction on freedom of expression.

2. Confusion between wajib, haram, harus, sunat, makruh. The SCOA confuses the scale of values on acts and conduct of humans: wajib (obligatory), haram (forbidden), harus/mubah (permissible), sunat/mandub (praiseworthy) and makruh (reprehensible). The SCOA is striking in its basic confusion between the wajib and sunat, and between makruh and haram, that is, between a legal obligation and a legal prohibition and what is morally reprehensible and a moral precept.

For example, s17 (1) makes it an offence to instigate any Muslim not to attend a mosque or religious teaching or ceremony. The fiqh books consider this only a makruh, a reprehensible act. But the SCOA has turned it into a legal haram.

Failure to attend Friday prayers in a mosque is a violation of the Sunnah of the Prophet which falls under mandub (sunat). But the SCOA has turned it into a wajib. Traditionally, the subject should fall within the purview of hisba, i.e., promotion of good and prevention of evil that 4

operates along different lines than law enforcement by the executive arm of the State.

3. Tendency to hold the instigator responsible for the actions of another person. In Syariah law, punishment for crime is strictly a personal matter. The Qur’an in 6:164 states, “no soul shall carry the burden of another soul”. Yet, provisions in the SCOA, for example Sections 17 and 35, prescribe punishment for ‘instigators’. And when the ‘crime’ itself is not clearly defined, how does one define the ‘crime’ of the ‘collaborator’. For e.g., what do the lawmakers mean by ‘failure to attend a mosque’ (s17(1) or ‘indulging in vice’ (s35)? Does going to a pub to listen to music constitute vice? Has someone who persuaded a friend to attend a school function instead of a mosque function committed an offence?

4. Tendency to create unenforceable punitive laws. For e.g. How does one prove in court that the person has failed to attend Friday prayers three consecutive weeks? Or in the case of the Terengganu SCOE failed to pray five times a day? What kind of resources are needed to determine that the offences have indeed been committed? Who then determines if the reason given constitutes a valid “uzur shari’ie”? What kind of evidence is required?

5. Lack of clarity and vague usage of terms. What is considered ‘indecent’, ‘insult to Islam’, ‘reasonable justification’ or ‘valid according to hukum syarak’ is left completely up to the discretionary powers of the enforcement officers, leaving these laws wide open to abuse of powers and arbitrary decision making and enforcement.

6. Distinction between what is legal and what is moral. The SCOA uses law as an instrument of morality and religion. In doing so it ignores the basic line of distinction between what is strictly legal and therefore justiceable in the courts, as opposed to what falls under morality and personal freedom over which the courts have no open jurisdiction to adjudicate.

Part Two of Prof Kamali’s paper covers the theoretical and conceptual discourse in Syariah criminal law and Part Three contains a special section on fatwa as developed in Malaysia and how it conflicts with the theory of fatwa in Islamic jurisprudence.

Prof Kamali concludes (pp56-59) that when statutory law itself departs from its own given maxims of positivism and rules on matters that essentially belong to the realm of morality and what may be deemed to belong to the sphere of personal choice and liberty, the expected result of such law making would be confusion and difficulty over enforcements. This is likely to erode the credibility and survival of both the laws and the lawmaking process, as 5

can be seen with the controversies that erupt over the enforcement of these laws in Malaysia. Prof Kamali asserts that law that encroaches upon the moral autonomy of the individual is as much of a bad law in modern jurisprudence as it would be under the Syariah.

Syariah-based legislation should uphold the moral autonomy and personal freedom of the individual rather than become an instrument of coercion. It is education that can develop a healthy outlook and stimulate the desired reform, rather than punitive action.

II. THE SCOA FROM A CONSTITUTIONAL PERSPECTIVE

Prof Shad Faruqi’s paper deals with the constitutional dimension to the debate on:

• which authorities (federal or state) have the power to punish transgressions of religious and moral injunctions, and
• to what extent and subject to what limitations these authorities may trespass into matters of private morality and conscience.

Prof Shad argues that even though in Article 4(1), the Federal Constitution declares itself to be the supreme law of the federation, a wide gap has developed between theory and practice. In relation to Islamic matters, a silent, informal re-writing of the Constitution seems to have taken place. A great deal of legislation on Islamic matters appears to disregard constitutional limitations. The residual powers of the states to legislate on Islamic matters have turned into inherent and unlimited powers.

He challenges the view that State Assemblies have legislative monopoly whenever a measure, in its pith and substance, deals with an Islamic civil or criminal matter. SIS agrees with the constitutional view that states have only a limited power confined to the explicitly mentioned areas of Islamic law in Schedule 9, List II, Item I. The rest of the field of Islamic law is open to federal jurisdiction.

What is of profound concern is the fact that this silent rewriting of the Constitution is taking place with the seeming acquiescence of the executive and judicial arms of government.

The areas of concern from a constitutional perspective include:

1. Power to create and punish offences against the precepts of Islam is a residual power, not an unlimited or sovereign power. Several constitutional provisions support this and yet state governments have been

1. allowed to act as if they have the authority to define their jurisdiction on Islamic matters in defiance of the Constitution. • Article 4(1) declares the supremacy of the Federal Constitution. Courts have the power to review federal and state legislation on the ground of “unconstitutionality”.
2. Schedule 9, List II, Item I which enumerates the specific fields where the state has power over Islamic matters implies that the intention of the Constitution was to confine state power to those enumerated fields.
3. List II Paragraph 4 (k) gives to the federal Parliament power in relation to the “ascertainment of Islamic law and other personal laws for purposes of federal law”. This means that the Constitution envisages that some federal laws will have an Islamic component. The states have no monopoly over these laws.
4. Article 3(4) provides that nothing in Article 3 derogates from any other provision of the Constitution. This means that Article 3(1) which declares that Islam shall be the religion of the Federation does not override any constitutional provision or extinguish any right guaranteed by the Constitution.
5. Article 160(2) in defining “law” does not mention the Syariah as part of the definition of law. Although Islam is the religion of the federation, it is not the basic law of the land (Che Omar Che Soh v. PP [1988] 2 MLJ 55).
6. The jurisdiction of the Syariah courts is not inherent but must be derived from federal law. Section 2 of the Syariah Courts (Criminal Jurisdiction) Act 1965 (Act 355) confers this limited jurisdiction whereby the Syariah court shall exercise its powers in respect of any offence punishable with imprisonment for a term not exceeding three years or with any fine not exceeding five thousand ringgit or with whipping not exceeding six strokes or with any combination thereof. Any penalty like cutting of hands or stoning to death that is not mentioned in Act 355 is ultra vires the powers of the states and also unconstitutional.

2. Legislative powers in Schedule 9 must conform to fundamental rights. Schedule 9 does not give to Parliament or to the State Assemblies a carte blanche to pass laws on Islam irrespective of the constitutional guarantees in Articles 5 to 13. It is noteworthy that Article 74 on the subject matter of federal and state laws states clearly that “the power to make laws conferred by this Article is exercisable subject to any conditions or restrictions imposed with respect to any particular matter by this Constitution.” It is submitted that Schedule 9 cannot authorize punishments for acts that are protected by the guarantees of Part 2.

Yet, the chapter on fundamental liberties in the Federal Constitution has been subordinated to federal and state jurisdiction to legislate on Islamic matters, as in Lina Joy v. Majlis Agama Islam Wilayah [2004] 2 MLJ 119. Legislative powers in Schedule 9 must conform to fundamental rights. It is not fundamental rights that must be whittled down to permit an unrestrained usage of law-making powers in Schedule 9.

3. What constitutes offences against the “precepts of Islam”. Federal-state division of legislative power has broken down in relation to matters of Islamic law. Schedule 9, List II, Item I clearly enumerates specific areas of Islamic law over which the states have jurisdiction. It says states have authority relating to “creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List”. This means that List II acknowledges that certain “precepts of Islam” are part of the federal jurisdiction.

State powers over Islam are neither exclusive nor comprehensive. Among matters included in the Federal List are “civil and criminal law and procedure” (List I, Item 4) and “Betting and lotteries” (List I Item 4(l). The words “except in regard to matters included in the Federal List” and the assignment of criminal law and procedure and betting and lottery to the federal jurisdiction clearly imply that State power over Islamic law offences is subordinate to the federal power and is residual and not inherent. Crime is, mostly a matter for federal supervision.

• Provisions that overlap federal criminal offences. For e.g., Sections 7,8, 18, 25, 26, 30, 32, 43, 46 of the Penang Syariah Crimes Enactment 1996 on areas such as insulting or bringing into contempt the religioun of Islam, gambling, liwat and musahaqah, giving false evidence, defiling a mosque, abetment could be said to overlap similar provisions in the Penal Code and Gaming Tax Act.

• Laws that trespass into federal jurisdiction. The Syariah Criminal Code II Enactment 1993 Kelantan and of Terengganu, 2001 (the so-called Hudud laws) seek to punish crimes of theft, robbery, carnal intercourse against the order of nature, homicide, causing death, injury, pain, harm, disease, infirmity, or injury. All the above are federal offences and therefore outside the powers of the state to legislate.

4. Judicial reluctance to adjudicate. The superior courts appear reluctant to intervene or to adjudicate whenever an “Islamic” law is challenged on constitutional grounds. Article 121(1A) was never meant to oust constitutional or jurisdictional issues. And yet the civil courts appear extremely reluctant to examine the constitutionality of Syariah-based legislation even when human rights violations are involved.

For example, the civil courts consistently refuse jurisdiction to examine the constitutional issue of freedom of religion. When it comes to a person who was born a Muslim or who converts to Islam, any constitutional claim of a right to choose one’s faith under Article 11(1) and any assertion that one has a personal right to determine what he/she is professing or wishes to “profess” has been refused by the courts.

Once a Muslim, always a Muslim unless the Syariah court determines otherwise seems to be the rule. This has been the decision in a score of cases. In the case of Priyathaseny v Pegawai Penguatkuasa Agama Perak [2003]2 MLJ302, the first Plaintiff, born a Malay-Muslim renounced Islam, adopted Hinduism, changed her name, married the second Plaintiff (a Hindu) and bore him two children. While carrying the second child she was arrested and charged for deriding Islam (for the action she took to leave Islam) and for cohabitating outside of lawful Muslim wedlock. She pleaded that she no longer professed Islam. The High Court in Ipoh (Justice Abdul Hamid Embong) held that the High Court has no jurisdiction to determine the issue. The matter was for the Syariah courts.

In the same case, the second Plaintiff (her husband, who was a life-long Hindu) had gone through a formal conversion to Islam. He was seeking a declaration that his action was made under duress as he was advised that his wife would go to jail if he did not convert to Islam. Even in his case, the judge was of the view that the matter was for the Syariah court to decide whether he remained a Muslim in spite of the allegation that he was coerced into converting.

In Lina Joy v Majlis Agama Islam Wilayah [2004]2 MLJ 119, the plaintiff was born a Muslim. She converted to Christianity; sought to marry a Christian; and sought to change her name and description as a Muslim. Her application to the National Registration Department having been rejected, she went to court. She argued that she has a right to religious freedom under Article 11(1); that having converted to Christianity, the Syariah laws were not applicable to her; that the Syariah law that forbade apostasy was unconstitutional.

Justice Faiza Thamby Chik held that the right in Article 11(1) has to be read in the light of the rest of the Constitutional provisions which deal with Islam as the state religion and confer power on the states to legislate for Islam. The judge seemed to subject Article 11(1) to article 3(1). This is a clear disregard of Article 3(4) which clearly provides that “nothing in Article 3 derogates from any other provision of this Constitution”. The judge also 9

proceeded on the assumption that the power of the states to legislate for Islam was quite independent of the Plaintiff’s fundamental right in Article 11. In fact all legislative power is subject to the supreme Constitution and especially to the chapter on fundamental rights.

5. Circumventing federal jurisdiction by turning a matter into a precept of Islam. There is now a dangerous trend to use Islam to make policies at the state level in order to circumvent federal policy. For e.g. Johor issued a fatwa in 2001 for mandatory HIV/AIDs testing of Muslim couples intending to marry. This was intended to circumvent the federal government’s Ministry of Health policy that such testing can only be voluntary. Since then, several states have followed suit, including Selangor, Pahang, Perlis, Malacca and Perak. In the early 1990s, women’s groups successfully put off attempts to turn domestic violence from a crime into a family matter and therefore come under state jurisdiction under Islamic Family Law, in order to prevent Muslims from coming under the jurisdiction of the Domestic Violence Act.

Conclusion

Sisters in Islam urges the Government to closely read the attached papers and the many other articles and books submitted to the both Minister of Law and the Attorney-General’s Chambers in the past on these matters of concern.

Based on our research and findings on the Syariah Criminal Offences Act, we urge the Government to look into the following recommendations:

1. That, the Syariah Criminal Offences Act 1997 (and the relevant state enactments) be repealed on the basis of it being ultra vires the Federal Constitution and against Islamic legal theory and practice.

2. That, criminal law be treated entirely as a Federal law subject, and not as a matter of religion or state jurisdiction for the purposes of a uniform penal code, uniform and equal standards in criminal law administration and procedure, equal and fair treatment to all citizens in the administration of justice and to avoid jeopardy and dual prosecution and dual standards in the treatment and punishment of criminal offences.

3. That, morality be kept outside the purview of criminal law. Alternative approaches must be explored, including education, persuasion, prevention. It is not the duty of the state – in order to bring about a moral society – to turn all “sins” into crimes against the state and as a result enact a law that is largely unenforceable. A distinction must be made between sin (which should remain a matter of private conscience between the believer and God) and crime (which consists of conduct that causes harm to others).

4. That, while putting into practice precepts of Islam, the Government considers all differing views and be guided by the principles of justice, equality and public interest.

5. That, in the passing of a law on the precepts of Islam, the Government takes into consideration the multi cultural, multi racial and multi religious identity of the country and the needs of Malaysian Muslims in contemporary situations.

The Federal Constitution is indeed the supreme law of the land. This Government must therefore display the political will and courage needed to deal with these urgent constitutional issues that are fundamental to the nature and shape of the modern Malaysian state and citizenship. Muslims and people of other faith in Malaysia are all equal citizens before the law and must therefore enjoy equal constitutional rights and protection.

If the indisputable objective of Islamic law is justice, then laws made in the name of Islam in substance and implementation cannot result in injustice that eventually brings Islamic law, the law-making process and Islam itself into disrepute. In a country that embraces modernity like Malaysia, it is imperative that the Government examines these urgent concerns and take due consideration in enacting and implementing laws in the name of Islam.

Sisters in Islam
17 October 2005