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Themes of Talk
A.
B.
C.
D.
E.
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Position of Islam under the FC
Art. 3(1) of the FC
• Islam is the religion of the Federation.
• Other religions may be practised in peace and harmony (reinforced in
Article 11 - freedom of religion).
Reid Commission Report
• Extracts from page 73, at para 169:
•“… There was an universal agreement that if any such provision were inserted it must be made clear that it would not in any way affect the civil rights of non-Muslims. In the memorandum submitted by the Alliance it was stated – “religion of Malaysia shall be Islam.
The observance of this principle shall not impose any disability on non-Muslim nationals professing and practising their own religions and shall not imply that the State is not a secular State ” …”
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Judicial Thoughts – Year 1988
 Che Omar bin Che Soh v PP [1988] 2 MLJ 55 (SC)
Key statements by Tun Salleh Abas LP :
 “ The (islamic) law was only applicable to Muslims as their personal law .
”
 “During the British colonial period, through their system of indirect rule and establishment of secular institutions, Islamic Law was rendered isolated in a narrow confinement of the law of marriage, divorce and inheritance only.
”
 “It is in this sense of dichotomy that the framers of the Constitution understood the meaning of the word “Islam” in the context of Article 3. if it had been otherwise, there would have been another provision in the
Constitution which would have the effect that any law contrary to the injunction of Islam will be void.
”
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Judicial Thoughts – Year 2000
 Meor Atiqulrahman bin Ishak dan lain-lain v Fatimah bte
Sihi dan lain-lain [2000] 5 MLJ 375 (HC)
Observation by Mohd Noor Abdullah J (as he then was), in the original language, Bahasa Melayu:
 “Islam ialah ugama bagi Persekutuan tetapi ugama-ugama lain boleh diamalkan dengan aman dan damai' bermakna Islam adalah ugama utama di antara ugama-ugama lain yang dianuti di negara ini ...
Islam bukan setaraf dengan ugama lain , bukan duduk berganding bahu atau berdiri sama tegak. Ia duduk di atas, ia berjalan dahulu, terletak di tempat medan dan suaranya lantang kedengaran. Islam ibarat pokok jati
— tinggi, teguh dan terampil.”
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Judicial Thoughts – Year 2010
 The “Allah” Case (Civil Appeal No. W-01-1-2010)
Judgment by Mohamed Apandi bin Ali (JCA):
 “[31] It is my observation that the words “in peace and harmony” in Article 3(1) has a historical background and dimension, to the effect that those words are not without significance. The Article places the religion of Islam at par with the other basic structures of the Constitution, as it is the 3rd in the order of precedence of the Articles that were within the confines of Part I of
the Constitution...
”
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Islamic Criminal Law under the FC
Art. 121(1A) of the FC
• Civil Courts have no jurisdiction in respect of matters within the jurisdiction of Syariah
Courts.
State Jurisdiction
• List II, 9 th Schedule of the FC refers to Islamic law and personal and family law of persons professing the religion of Islam.
Syariah Court’s Jurisdiction
• Offences against the precepts of Islam under any written law (except for offences conferred by federal law)
• For example, Islamic crimes like drinking liquour, unlawful sexual relations and not fasting during the month of Ramadhan.
• Syariah Courts (Criminal Jurisdiction) Act 1965 – Section 2
• Max 3 years jail, RM5,000 fine & 6 lashes
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What is Hudud?
Extracts from:
• Mohammad Hashim Kamali , ‘Punishment in Islamic Law: A Critique of the Hudud Bill in Kelantan, Malaysia’,
[1988] Arab Law Quarterly 203-234;
•
Mohmmad Hashim Kamali
, ‘Are the Hudud Open to Fresh Interpretation? [2010 ] Vol. 1, No. 3, ICR Pluto Journals
516-518.
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6 Offences under Hudud Law
(based on the Hudud Bill passed by the State Legislature of Kelantan in 1993)
Offence
Adultery
Theft
Punishment
• Stoning to death for a married person
• Whipping of 100 lashes + 1 year imprisonment for the unmarried
Evidence Required
• 4 eye-witnesses to prove the act of adultery
• All witnesses MUST be adult male Muslims of just character
• 1 st offence: amputation of the right hand from the wrist;
• 2 nd offence: amputation of the left foot
(in the middle in such a way that the heel may still be usable for walking and standing)
• 3 rd & subsequent offences: imprisonment for such terms as in the opinion of the court are “likely to lead to repentance”
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6 Offences under Hudud Law
(based on the Hudud Bill passed by the State Legislature of Kelantan in 1993)
Offence
Slanderous
Accusation
Punishment
80 lashes of the whip if the accuser is unable to prove by 4 witnesses
Evidence Required
Highway Robbery
• Death
• Crucifixion if the robbery is accompanied by killing
Wine Drinking Whipping: 40 lashes (min) & 80 lashes (max)
Oral testimony of 2 persons
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6 Offences under Hudud Law
(based on the Hudud Bill passed by the State Legislature of Kelantan in 1993)
Offence
Apostasy
Punishment
• To repent within 3 days
• If reluctant to repent, death penalty and forfeiture of his/her property
• If he/she repents after the conviction, the offender will be free from death sentence and the property will be returned to him/her, but he/she will be liable to imprisonment of < 5 years.
Evidence Required
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Why Hudud
Basis for Terengganu’s and Kelantan’s Support for Hudud
Its psychological effect:
“hukuman itu benar-benar menggerunkan bakal-bakal penjenayah sehingga dia memberhentikan hasrat untuk melakukan jenayah;”
“[I]a memberi penekanan dalam dua aspek”
“Yang pertama, aspek spiritual, rohani, menimbulkan keinsafan - adanya pengawasan
Allah yang Maha Mengetahui sehingga tidak boleh disembunyikan, termasuklah segala yang tersirat dalam hati manusia. Yang kedua, aspek zahir melalui tindakan undangundang oleh Kerajaan dengan keterangan-keterangan dan syarat-syaratnya yang ketat dan tegas. Kesemua undang-undang Islam itu merangkumi segala aspek yang perlu dalam kehidupan manusia.
”
Widely accepted by Muslims and non-Muslims
“Kesemua undang-undang ini pernah dilaksanakan dengan cemerlangnya dan diterima bukan sahaja oleh orang-orang Islam, bahkan diterima juga oleh orang-orang yang bukan Islam yang merasai betapa baik kesannya ”
“undang-undang Islam ini telah mewujudkan keadilan, keamanan yang mutlak…”
Source: Tuaa Haji Abdul Hadi bin Haji Awang’s speech in the 8 th Parliament 3 rd Session of the House of Representatives (2 nd November 1993)
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Why Hudud Cannot be Implemented
Malaysia – a secular State
• The late Tunku Abdul Rahman: “ The country has a multi-racial population with various beliefs. Malaysia must continue as a secular State with Islam as the official religion ”.
• The late Tun Hussien Onn: “ The nation can still be functional as a secular state with
Islam as the official religion .
”
Violates Art 8 of the FC – Equality before the law
• Observation from Tun Dr Mahathir Mohamad - When two people, a Muslim and a non-
Muslim, committed a crime, only the former is subjected to heavy punishment but the latter is not.
• “ …If in a multi-racial country like Malaysia, the Muslims had to have their hands amputated (for theft) and the non-Muslims did not, the result would be that Muslims who have lost their hand would be unable to compete with the non-Muslims. It must be emphasised that the government’s attempt to inculcate Islamic values in the administration should not result in it becoming weak, passive or chaotic …”
(Source:
Extracts from
INTAN’s 1991 Publication, Nilai dan Etika)
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Why Hudud Cannot be Implemented
Federal and State Division
• Schedule 9, List II, Paragraph 1 of the FC – States have authority relating to “creation and punishment of offences by persons professing the religion of Islam, except in regard to matters included in the Federal List”.
• Criminal law and procedure, administration of justice, jurisdiction and powers of all courts and etc are under the Federal powers.
• Theft, robbery, rape, murder, incest and unnatural sex are all dealt with by the Penal
Code. These offences are therefore not within the State powers even though they are serious wrongs in Islamic criminal jurisprudence.
• Schedule 9, List II paragraph 1 of the FC – Syariah Courts “shall not have jurisdiction in respect of offences except in so far as conferred by federal law”
• Cf. Syariah Courts (Criminal Jurisdiction) Act 1965 – imposes limits on penalties that the Syariah Courts can impose. The punishments under Hudud – beyond the powers of the States.
•
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Why Hudud Cannot be Implemented
Affects the application of procedural law in Courts
• Evidence Act vs Hudud Evidence law
• Under Hudud law, material and scientific evidence, like semen stains, vaginal swabs, blood samples, scratch marks, genetic fingerprinting, etc are not admissible as methods of proof of adultery.
Violates Art 5 of the FC – right to life
• Right to life includes the right not to be subject to torture, inhumane or degrading treatment or punishment.
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Why Hudud Cannot be Implemented
International Covenant on Civil and Political Rights: Article 7
“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment . In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
”
The definition of Torture as defined by CAT
• “any act by which severe pain or suffering whether physical or mental, is intentionally inflicted on a person for purposes (of) … punishing him for an act…” Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (CAT) , Article 1
Punishments under Hudud Law
•
Theft: amputation of a hand;
•
Armed robbery: amputation of a foot, or 30 whippings or the death penalty;
• Slander and drinking alcohol: 80 lashes;
• Adultery: stoning to death at a public place (as prescribed in Chapter 24, Verse 2 of the Quran).
The prohibition under Article 7 of ICCPR
• Extends to “ corporal punishment, including excessive chastisement ordered for a crime”
.
• Source: The Human Rights Committee (HRC) in General Comment 20
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Why Hudud Cannot be Implemented
Violates Women’s Rights
• CEDAW – ratified in 5 July 1996.
• Lee Swee Seng JC in
Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam
Perak & Ors [2013] 5 MLJ 552 stated:
• “[99]…Malaysia has an obligation to ‘take all appropriate measures’ to eliminate discrimination against women and ensure that women are able to develop and advance in all areas: civil, political, economic, social and/or cultural, including the private sphere of the home. CEDAW is based on three main principles: subtantive equality, non-discrimination, and state obligation …”
• Zaleha Yusof J in Noorfadilla bt Ahmad Saikin v Chayed bin Basirun & Ors [2012]
1 MLJ 832 stated:
• “[24] CEDAW is not a mere declaration. It is a convention… it has the force of law and binding on members states, including Malaysia.
”
• “[26] Hence, it has become the obligation of this court to have regard to Malaysia’s obligation under CEDAW in defining equality and gender discrimination under art 8(2) of the FC.
”
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Countries where Sharia applies in full
(personal status issues & criminal proceedings)
Country
Afghanistan
Iran
Iraq
Pakistan
Malaysia
Nigeria
Saudi Arabia
Sudan
Yemen
Rank
Out of 162 countries
162
137
159
157
29
148
97
158
152
2013
Global Peace Index
Score *
3.440
2.473
3.245
3.106
1.574
2.693
2.119
3.242
2.747
Rank
Out of 158 countries
156
132
155
153
30
146
108
157
145
2012
Global Peace Index
Score *
• GPI scores are given a normalised score on a scale of 1-5,
1 being the score for “more peaceful” to 5 being the score for “ less peaceful ”.
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3.336
2.417
3.227
3.000
1.590
2.707
2.214
3.398
2.697
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Hudud Elsewhere
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Other Hudud
Offences
28%
Zina / Zina-biljabr
72%
Source: M Farooq, Rape and Hudood Ordinance: Perversions of Justice in the Name of Islam , (2006).
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Out of the 88% of women charged with Hudud
Offences, 72% of them were charged with the offence of Zina or Zina-bil-jabr
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Hudud Elsewhere
1992
1996
2002
2006
More than 70 % of women in police custody were subjected to rape by police officials.
“Women were kept in lock ups for days without formally registering a case against them or producing them before the magistrate within prescribed 24 hours period.
Most sexual abuse of women detainees occurred in this period of invisibility.
”
Source: Dorothy Thomas of Human Rights Watch in her article in 1992.
Up to 90 % of recorded rape victims were in jail because they failed to produce credible witnesses to support their charges of rape.
Source: M Polk, ‘Women Persecuted Under Islamic Law: The Zina Ordinance in
Pakistan as a Basis for Asylum Claims in the United States’ (1998) 12 Geo. Immigr. LJ
379.
There were an estimated 2,200 women prisoners in Pakistan, most of whom were awaiting trial or were convicted under the Hudud laws.
Source: The Human Rights Commission of Pakistan
Human Rights Commission Report 2006
Women aged over 70 years to girls as young as 11 had been imprisoned on charges of zina.
Each year, over 1500 cases were registered against women.
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Hudud Elsewhere
Sudan Human Rights Organisation:
In issuing its “Memorandum of Urgent Appeal to Stop the Killing of a Christian woman by Sharia law and Government Political
Abuse”
, the Sudan Human Rights Organisation demanded the abolishment of the Hudud penalties by repealing the Sudan Penal Code 1991:
“The Sudan Human Rights Organization has repeatedly asked the Government of Sudan to abolish the Sudan Penal Code 1991 because it contradicts international human rights standards and applicable norms. For the majority Muslims of Sudan, the Sudan Penal Code
1991 is a primitive law …”
National Commission on the Status of Women in Pakistan
NCSW, a statutory body and oversight body to review policies, unjust practices and laws affecting women in Pakistan urged for the repeal of the Hudood Ordinance in Pakistan.
Source: ‘Study to Assess Implementation Status of Women Protection Act 2006’ , National Commission on the Status of Women: 2006
The Pakistan Women Lawyers Association (PAWLA)
A non-governmental organisation asked for the repeal of the Hudood Ordinance in Pakistan and gender discriminatory laws against women.
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“In the case of Sabah and Sarawak, the constitutional safeguards for their special interests upon joining Malaysia, as equal partners, with the States of Malaya, are largely in tact, although there have been occasional murmurs from the Sabah front that the
“20 Points” Memorandum (not the Malaysia Agreement) was not fully honoured. In any event, the recommendations of the Cobbold Commission that “no amendment, modification or withdrawal of any special safeguards granted should be made by the Central Government without the positive concurrence of the State concerned” had been accepted in good faith and complied by the Federal
Government.
…
It is acknowledged that the Malaysia Act 1963, which amended the Constitution to entrench the safeguards for the Borneo States, and to place them to a position of a better protection than the original Malayan States in the Federation …”
Source: JC Fong, Constitutional Federalism in Malaysia (Sweet & Maxwell Asia: 2008, p
271)
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18-Point & 20-Point Agreement
Point 1: Religion
While there was no objection to Islam being the national religion of Malaysia there should be no State religion in [Sabah/Sarawak], and the provisions relating to Islam in the present
Constitution of Malaya should not apply to [Sabah/Sarawak].
The Legal Status of the 18-Point and 20-Point Agreements
• Submissions or joint manifestos submitted to Inter-Governmental Committee (IGC) stipulating the safeguards and special conditions demanded by the political parties in
Sabah and Sarawak.
• Not all the safeguards or protections raised were accepted by the IGC to be incorporated into the Federal Constitution
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Article 161E - Safeguards for constitutional position of States of Sabah and
Sarawak
…
(2) No amendment shall be made to the Constitution without the concurrence of the Yang di-Pertua Negeri of the State of Sabah or Sarawak or each of the
States of Sabah and Sarawak concerned, if the amendment is such as to affect the operation of the Constitution as regards any of the following matters:
…
(d) religion in the State , the use in the State or in Parliament of any language and the special treatment of natives of the State;
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Lim Chee Wee
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Wisma HCK, No 6 Jalan 19/1B,
Seksyen 19, 46300 Petaling Jaya,
Selangor Darul Ehsan
 : +6037968 8888 (ext 114)
Fax: +60379682200
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