No. 4 Lorong 11/8E, 46200 Petaling Jaya, Selangor Darul Ehsan, Malaysia.​

The Kelantan Incest Case

The Kelantan Incest Case

Sisters in Islam views with concern the prosecution for incest of a 17-year-old girl, by the Kelantan Syariah Court. There is an assumption here that the daughter, considered a minor under civil law, is a willing partner in committing the crime of incest.

The daughter initially pleaded not guilty and had defended herself. However, the next day, after a discussion with her mother via telephone during a break in the trial, she thereafter pleaded guilty to the charge of incest. The court bound her over to be of good behaviour for one year with her mother standing surety. Since her mother has failed to post the bond of $1,000, the girl was sentenced by the court and committed to a rehabilitation home for one year.

While we welcome the Court’s use of its discretionary powers in not allowing the publication of the girl’s name and its decision not to imprison the girl, Sisters in Islam would like to raise some issues of concern, socially and legally, in the handling of this case. Important issues which need to be considered:

Is the girl a victim or a willing partner in the commission of the crime of incest? What was the evidence that led to the assumption of guilt against the girl and the decision of the Syariah Court to prosecute her? Even if it was felt that the girl was a willing partner, due to her young age and the perpetrator was a figure of authority and control, questions should arise as to the voluntary nature of her act. She could have been a victim of child abuse, or she could have committed the act under duress or coercion by the father.

What are the safeguards that exist to ensure that her guilty plea was indeed genuine? The fact that the girl had at first pleaded not guilty and then changed her plea after speaking to her mother by telephone, the fact that the girl was in tears after this conversation, that her mother was not in court to give her support, should raise some concern and questions about the circumstances of her guilty plea.

Given the nature of the crime and the relationship involved, should the Court exercise its discretionary power and request for further information to ascertain if a charge should in the first place be made against the girl? Could the Court take the parties into chambers to discuss the matter and advise the prosecution to withdraw the charge or order that the girl be discharged after due advice?

Conflict between two parallel legal systems: The girl is a minor under civil law (under 18 years of age). However, under syariah law she is considered a “baligh” (one who has attained the age of puberty) and therefore a “mukallaf”, one who is of right mind and therefore able to distinguish between what is good and bad and therefore take responsibility for her actions.

Under syariah law, once a girl begins menstruation, she is considered an adult and therefore liable to a prosecution for illicit sex. Today, a girl may reach puberty at nine years of age, but does that mean she is mature enough to be held responsible for her actions? Under civil law and in society’s eyes, she is a mere child. What provisions exist under syariah law to protect the interest of children and young persons against crimes perpetrated by adults in positions of authority and control over their well-being?

We welcome the court’s willingness to apply its discretionary powers and consider the provisions provided in the civil law, more specifically the Juvenile Courts Act, 1947 (“JCA”) in respect of the non-publication of the girl’s name/identification (s. 5A of the JCA) and in binding her over to be in good behaviour for one year. We wished, however, that the court could also have used its discretionary powers in considering the girl a juvenile instead of an adult and accord her the procedures provided for under the JCA.

In what way was the girl’s interest protected in the handling of this case? Under the JCA (s. 10), such a case would be referred to a Probation Officer who would provide the Court with information as to the girl’s general conduct, home surroundings, school record, medical history so as to enable the Court to deal with the case in the best interests of the juvenile. The Juvenile Court will also not hold a hearing without the report of the Probation Officer. Moreover, the court is assisted by two advisers, one of whom is a woman, whose duty it is to inform and advise the court with respect to any consideration affecting the punishment or other treatment of any child or young person brought before it (s. 4(2).

Should the confession of a father to the crime of incest be used as a mitigating factor to prosecute the victim, a minor under the protection and control of an authority figure who is also the pepetrator of the crime? Even if there was overwhelming evidence against both the father and the daughter and the fact that the father admitted to the charges, the Syariah Court must give due consideration to the fact that the victim is the daughter and a minor.

Given the reality of present day society where girls begin menstruation at a much younger age, shouldn’t the religious authorities review the definition of “baligh” and the assumption of “mukallaf” to determine whether a young person can be held responsible for her actions. Even if the daughter in this case did consent to such an act of incest, society would question the circumstances of her family life and relationship that could enable such an act to happen. These must be regarded as mitigating factors.

Given society’s abhorrence of the crime of incest, wouldn’t the best interest of society and the cause of justice be better served if the father was charged with rape under the Penal Code where he is liable to imprisonment for not less than five years and not more than 20 years. This sentencing properly reflects the gravity of the crime committed. However, under the Kelantan Syariah Criminal Code, the person who commits incest is liable only to a fine not exceeding $3,000 or to imprisonment for a term not exceeding two years, or both. In this particular case, the Syariah court sentenced the 36-year-old father to a total of two years jail, a $4,000 fine and two strokes of the rotan when he pleaded guilty to charges of incest and mukaddimah zina (preliminaries to adultery) with the daughter.

Kelantan Enakmen Keterangan Mahkamah Syariah 1991 (Kelantan Evidence Enactment of the Syariah Court, 1991)
Enakmen Kanun Jenayah Syariah, tahun 1985, Negeri Kelantan (Kelantan Syariah Criminal Code Enactment 1985)
Enakmen Acara Jenayah Syariah No. 9/83, Negeri Kelantan (Syariah Criminal Procedure Enactment 1983)
Akta Mahkamah Juvana 1947 (Juvenile Courts Act, 1947)
Penal Code (FMS Cap 45)

Sisters in Islam
21 March 2000