Proposed Toughening of Sharia Sentencing Sparks Outcry in Malaysia

Hata Wahari
Kuala Lumpur
160531_MY_bill_1000.jpg Muslim activists wait outside Malaysia's highest court in Putrajaya as the court weighs a bid by Christians to use the name "Allah," June 23, 2014.

The ruling party in Malaysia has given preliminary backing to a proposed law in parliament seeking to give more clout to Islamic courts, raising tensions in the multi-racial country where non-Muslims fear it contradicts the country’s secular constitution.

But legal experts who BenarNews spoke to Tuesday said that non-Muslims need not be concerned by the proposal of the Pan-Malaysian Islamic Party (PAS) to increase the punishments meted out by the sharia courts.

In a surprise move last week, a cabinet minister from Prime Minister Najib Razak’s ruling Barisan Nasional coalition fast tracked the PAS bill for debate.

Only Muslims, who make up more than half of the country’s population, are subject to sharia laws and Najib has stressed that non-Muslims would not be affected by the proposed measure to amend the Sharia Courts (Criminal Jurisdiction) Act 1965.

At present, sharia courts can impose a maximum sentence of three years’ imprisonment, a maximum fine of 5000 Malaysian ringgit (U.S. $1,214) and whipping up to six strokes.

Under the proposed amendment, sharia court judges may be able to impose whipping of up to 100 strokes on those convicted of engaging in illicit sex and up to 80 strokes for consumption of alcohol, a group of non-governmental organizations said in a statement.

“Technically the bill merely sought to widen the powers of the sharia court; it is not about hudud,” Abdul Aziz Bari, a professor of constitutional law, told BenarNews.

Hudud is the Islamic penal code which sets punishments that include amputation of the hand for theft and stoning for illicit sexual relations.

Experts said sharia courts will not cover crimes that conventional courts have jurisdiction over at present.

A laughing stock

The PAS bill would insert a clause stating that in the exercise of the criminal law, “the Sharia Court has the right to impose penalties allowed by sharia law … other than the death penalty,” according to a copy seen by BenarNews.

PAS is attempting to elevate the status of the sharia courts whose inadequate punishments have made them a laughing stock, the party’s deputy president Tuan Ibrahim Tuan Man told a press conference Tuesday in Kelantan, according to Free Malaysia Today.

The conservative northern state unanimously passed a hudud bill in March 2015 but it could not be implemented until a parliamentary bill removed obstacles at the federal level.

But that bill swiftly opened fissures in Najib’s ruling Barisan Nasional coalition as several key members reportedly threatened to resign over it.

Malaysian Indian Congress (MIC) president and Health Minister S. Subramaniam said he would quit as health minister if the law were implemented, following a similar move by Liow Tiong Lai, Malaysian Chinese Association president and transport minister.

Sim Kui Hian, president of the Sarawak United People's Party, said the legal maneuver could cause the sprawling state in eastern Malaysia to secede.

"The passing of the bill could motivate Sarawakians to part ways with Malaysia," CNN quoted him as saying.

Najib attempted to smooth over the tensions.

"I would like to state that it's not for the implementation of hudud. It's just to give the Sharia courts enhanced punishments. From six-strokes caning to a few more," he said, according to media reports.

Opposition leaders called the bill an attempt to circumvent the Malaysian constitution, which names Islam as the state religion but guarantees a secular society.

“Clearly PAS is trying to bypass and get around the constitutional requirement of a 2/3 majority by treating this as an ordinary law which requires only a simple majority,’ Malay Mail Online quoted Lim Guan Eng, secretary general of the opposition Democratic Action Party (DAP), as saying.

He said the amendment could pave the way for two separate criminal systems in the diverse country, where religion and race often go hand in hand.

Most of the country’s ethnic Malays are Muslim; many of its sizeable ethnic Chinese, Indian and indigenous citizens are not. About 61% of 30.5 million Malaysians are Muslim.

Federal v. sharia

Zainul Rijal Abu Bakar, president of Muslim Lawyers Association of Malaysia, suggested that many of the bill’s most vocal critics may not have actually read it.

The law would apply only to Muslims and to crimes not covered by federal criminal statutes, he told BenarNews. Moreover, it must be approved by state assemblies before it can go into effect, since states have jurisdiction over religion in Malaysia.

“Among the more pertinent question is what would happen [under the proposed law] if, for example, a Muslim woman was raped by a non-Muslim man. Would the man be charged under the sharia law, or federal law?” he said.

“The answer is very simple. That non-Muslim man cannot be charged under the sharia law because rape (as a crime) falls under federal jurisdiction … Even if the bill is passed it doesn't make the crime shifted to state jurisdiction.”

Zulhazmi Shariff, a sharia law expert, said the amendment would not enable punishments such as cutting off a hand for theft.

“The crimes of theft and rape, which could be punished under hudud law, can only be brought before a civil court under the federal constitution. The sharia court has no jurisdiction over them,” he said.

Hudud punishments laid out in Muslim scripture include up to 100 lashes for illicit sexual relations; up to 80 lashes for false accusations of illicit sex; up to 80 lashes for drinking intoxicants; and death or banishment for apostasy, or abandoning one’s faith.

“With the exception of Saudi Arabia, hudud punishments are rarely applied, although recently fundamentalist ideologies have demanded the reintroduction of hudud, especially in Sudan, Iran, and Afghanistan,” according to the website Oxford Islamic Studies Online.


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