REPEAL SYARIAH CRIMINAL OFFENCES LAWS
The Joint Action Group for Gender Equality (JAG) is deeply disturbed over the news report that the Johor Religious Department has whipped 24 women and 17 men since 4 April 2013 and sentenced another 22 women and 17 men to the same fate for allegedly committing incest and having sex outside of wedlock.
The announcement raises several issues of concern:
- 1. Whipping as a form of punishment also violates human rights principles, in particular the right to be free from cruel, inhuman, degrading treatment or punishment. JAG supports the highest standard of equality which leads to the fulfilment of rights and not equality in misery. Whipping as a form of punishment should therefore be repealed.
- Discrimination against Muslim women. Article 8(2) of the Federal Constitution guarantees equality and non-discrimination on the basis of religion and gender. Therefore any laws that impose whipping of women based on their religion violate this principle of non-discrimination. Moreover, the Criminal Procedure Code and the Prison Regulations clearly prohibit the whipping of women of any age.
- Crime of Incest. It is grossly unjust that the Syariah Criminal Offences Laws renders a victim of incest liable to a charge of illicit consensual sex. This fails to recognise the power dynamics in sexual crimes that occur within the family. No victim should be punished or even charged for the crime of incest.
- A higher number of women have been whipped and sentenced thus far in contrast to men. This imbalance reflects the common outcomes in other Muslim countries with Syariah laws where disproportionate numbers of women are charged and found guilty of sexual crimes, compared to men.
- Conflict of laws. Both the Penal Code (s.376) and the Johor Syariah Criminal Offences Laws (s. 20) contain specific provisions on incest, but the punishments differ. The cause of justice would be better served if those caught for incest are charged under the Penal Code, where a guilty party is liable to imprisonment for not less than six years and not more than 20 years. This sentencing properly reflects the gravity of the crime committed. However, under the state syariah laws, a person who commits incest is liable only to a fine not exceeding $5,000 or to imprisonment for a term not exceeding three years, or to whipping not exceeding six strokes or to any combination thereof.
Given the conflict of law, Federal law should prevail and all crimes of incest should be prosecuted under the Penal Code to ensure consistency in the application of the law.
- Degrading punishments go against the teachings of the Quran. The Johor Religious Department is now proposing convicted individuals be whipped in public spaces such as mosques on the highly subjective observation that the facial expressions of the punished individuals showed remorse. It is impossible to measure the degree of repentance based on someone’s facial expression. Moreover, there is still no solid evidence that whipping is an effective deterrent to violent or sexual crimes.
The practice and selective prosecution of moral policing go against the injunctions laid out in various verses in the Qur’an, such as “do not pry into others’ secrets” (Surah Al-Hujurat 49:12); “Do not enter other houses except yours without first asking permission and saluting the inmate; If you are asked to go away, turn back. That is proper for you” (Surah An-Nur 24:27-28); and “when you judge among the people, do so equitably” (Surah An-Nisa 4:58). A hadith of the Prophet (saw) in Sunan al-Tarmidhi also states “Do not harm Muslims, and do not revile them, nor pursue their imperfections…” When an individual is reprimanded, it is necessary to ensure that their rights to justice, equality, and dignity are upheld at all times and not trampled upon in the state’s overzealousness to enforce evermore degrading punishments.
In past civilizations all over the world, in both the West and the East, severe physical punishments were common, especially during medieval times. There was nothing particularly “Islamic” about physical punishments. On the contrary, the spirit of the Qur’anic injunctions encouraged restraint and limited the then common practices of imposing physical punishments. It teaches the spirit of universal love, and emphasizes repentance and rehabilitation of sinners, and God’s forgiveness and mercy is a constant recurring theme.
JAG, therefore, reiterates its call to the Government to review and repeal the Syariah Criminal Offences legislation on the grounds that many of its provisions have no basis in Islamic legal theory and practice. Moreover, many of them as well conflict with the Penal Code and the Federal Constitution.
Issued by the Joint Action Group for Gender Equality which includes: Sisters in Islam (SIS) Women’s Aid Organisation (WAO) All Women’s Action Society (AWAM) Perak Women for Women Society (PWW) Persatuan Kesedaran Komuniti Selangor (EMPOWER) Persatuan Sahabat Wanita Selangor (PSWS)