SHARIA CRIMINAL LAW OFFENSES

The Malaysian Islamic judiciary strives to uphold Islamic ethical norms and public morality through extending discretionary punishments (Ar. ta’zīr; M. takzir) to cover offenses that faced more severe ḥudūd penalties in classical jurisprudence.

This is based on a fiqh principle... that states that if you can’t fulfill something completely you still can’t leave it altogether. Even though we can’t implement ḥudūd, we still can’t leave punishing these acts altogether.... Like Prophet Muhammad sallallahu ‘alaihi wassalam, when he performed akikah¹ for his grandsons, Hassan and Hussein, for both of them he slaughtered one lamb each.... Prophet Muhammad also did one lamb for other akikah ceremonies.... His regulation [reported in hadith] states that for each son two lambs should be slaughtered for the akikah, but he did one in these cases. Based on the spirit of sharia, that is the authority of the court. With the permission of Allah, in the future, we will be able to get it. Now, everything is ta’zīr. Whatever we can get we implement it.²

The Syariah Criminal Offences (Federal Territories) Act of 1997 contains a preliminary section and two latter sections addressing general matters and exceptions, and core parts covering offenses relating to ‘aqidah (M. akidah; Islamic belief), the sanctity of the religion of Islam and its institutions, decency, miscellaneous offenses, and abetment and attempt. Offenses relating to ‘aqidah include provisions restricting wrongful belief, false doctrine, propagation of deviant religious doctrines, and false religious claims.

On the other hand, individuals and small groups of Shia Muslims have been arrested and officially charged with helping to spread Shia doctrines in Malaysian society. In 1996, the Fatwa Committee of the National Council for Islamic Religious Affairs Malaysia decided to abolish the previous ruling of the Fatwa Committee Conference issued in 1984, which declared that “only the Zaidiyyah and Jaafariyyah Shi‘ite sects are accepted to be practiced in Malaysia.”³ They decided in this new ruling that “Muslims in Malaysia must only follow the teachings of Islam based on the doctrine of Ahl al-Sunnah wa al-Jama‘ah [People of the Tradition of Muhammad and the Consensus of the Umma, Sunni Islam] on creed, religious laws, and ethics,” and that the propagation of any other teachings would be prohibited.

The part of the Federal Territories act relating to “the sanctity of the religion of Islam and its institutions” includes the offenses of insulting or bringing into contempt the religion of Islam, deriding Qur’anic verses or hadith, contempt or defiance of religious authorities, defiance of a court order, religious teaching without tauliah (authorization), opinion contrary to a fatwa, religious publication contrary to Islamic law, failure to perform Friday prayers (for males beyond puberty), disrespect for Ramadan (month of fasting), nonpayment of zakat or fitrah (obligatory tithes), instigating neglect of religious duty, gambling, and the consumption of intoxicating drinks. These offenses reinforce traditional values of holding Islam, sacred texts, normative practices, and religious authorities in high esteem and are punishable by fines ranging from RM 1,000 to RM 5,000 and/or prison terms from six months to three years.

Likewise, the following part relating to “decency” sanctions violations of public morality and proper sexual behavior. It includes the offenses of incest, prostitution, muncikari (the procurement of unlawful sexual behavior), sexual intercourse out of wedlock (zina), an act preparatory to sexual intercourse out of wedlock, liwat (sexual relations between men), musahaqah (sexual relations between women), khalwat (people of opposite sex found in any secluded place), a man posing as a woman (pondan), and indecent acts in a public place. All of these offenses, except for the last three and acts preparatory to zina, are punishable up to the three-five-six limits under sharia jurisdiction. Provisions in sharia criminal procedure acts describe how sentences of whipping are to be carried out. Hakim Suhaily, a Federal Territories Lower Court judge, informed me that the whippings in sharia courts are less severe than are those in civil courts, and complained about misperceptions and obstacles from the public and politicians when they want to perform such penalties:

The Federal Territory Shariah Court (new location), 2012

The sebat [caning] in our Mahkamah Shariah [sharia court] and the civil, the practice is different because we definitely follow 100 percent the sharia.... The sebat in the civil court is much different... because here in the sharia court we still consider the person a human. But in the civil court they will sebat very hard, very strong.... If they are hit once in the civil court definitely they will bleed. I had an experience one time... we had a visit to the Sungai Bulong prison.... [They showed] all the judges how they perform the sebat. It was very scary.... It is a rattan... the person will be bleeding. But in the sharia court there will [only] be a scar [bruise]. So it is different. But the acceptance of the people, the public, is still not clear about it.

During one of my interviews with Judge Suhaily we discussed the procedures for arresting and charging a male person wearing woman’s clothing (pondan) in public. This offense and several others were left out of the figures his court provided me (see figure 3.1). For these cross-dressing cases, he told me, there is a special unit from the Department of Islamic Religion for the Federal Territories. This unit goes out and investigates, and once they find a person committing this offense they will arrest him and bring him to court and state the charge within twenty-four hours. Then the sharia court will hear the case and proceed with the punishment.

After he provided this general description, I asked, “Have you had a recent case like this?”

“Yes, usually there is no objection with these transsexual people⁶... they don’t contest. The punishment is usually based on the type of act. Here we have consideration. If it is [a] first-time offense, we can consider [that] and give a lower penalty. Actually for the lower penalty... we can consider the money.... It would be [RM] 1000 normally or one month [in] jail. If he cannot afford to pay... the penalty, then he will be in jail for one month. That is for the [first-time] case. If for the second time there is no change, and [it is] the same transsexual person, then there is no more consideration in terms of how much they pay or how long they go to jail. But it depends. We will study it and make an investigation.”

TABLE 3.1. Criminal cases of the Federal Territory of Kuala Lumpur Shariah Court, 2000–2010

Source: Federal Territory Shariah Judicial Department.

His response was rather general, so I continued to probe for more details about his recent cases. “So how old was this ‘transsexual’ in your recent case?”

“There are many levels of transsexuals. The youngest so far is around eighteen or nineteen. My recent case was thirty-four.... He was from another state but living in Kuala Lumpur. The oldest case is fifty or over.... This case was after a few times, so there was no consideration.... Based on the chronology of the case and the statement from the prosecutor and based on the statement from the transsexual person, the offender... if I am still not satisfied, I will have him take an oath.... But he agreed with everything.... He was dressed like a woman and offering sexual service to the guys. It is very embarrassing.... I gave him a conditional judgment that he had to pay an amount or he would have to go to jail.... But the amount for more than one time, it will be higher than [for] the first timer. If it is for the first time, I will advise him not to do the same thing and for him to repent.”

The part on “miscellaneous offences” in the Federal Territories act includes the offenses of giving false evidence, takfir (alleging that a person professing the religion of Islam is an infidel), destroying or defiling a place of worship, the collection of zakat or fitrah without authority, illegal payment of zakat or fitrah, encouraging vice, enticing a married woman, preventing married couple from cohabiting, enticing a woman, instigating husband or wife to divorce or neglect duties, selling or giving away a child to a non-Muslim, a slanderous accusation of unlawful sexual intercourse (qazaf; Ar., qadhf), and abuses of the halal sign. The provision on takfir applies to an unauthorized person who alleges that any person professing the religion of Islam is a kafir (infidel) or has ceased to profess the religion of Islam. Anyone proven guilty of this offense could be fined up to RM 5,000 and/or imprisoned for three years. The provision on qazaf states that if a person accuses another person of committing an unlawful sexual act without presenting four witnesses or a confession of the accused, then the person would be guilty and punishable upon conviction of a fine up to RM 5,000 and/or imprisonment up to three years. A sharia court judge told me he thought Anwar Ibrahim, the former deputy prime minister and leader of the opposition coalition, should have had his accusers put on trial for qazaf in the sharia court, where they would have been required to present four witnesses to substantiate their accusation.⁷ He also opined that Anwar Ibrahim should have taken an Islamic oath swearing that he did not commit the act of liwat. However, Anwar’s application for having his qazaf case heard in the sharia court was rejected, and a civil court subsequently found him guilty of liwat for the second time in 2015. The civil courts inherited their laws against liwat from British common law.

The final core part of the Federal Territories act covers “abetment” and “attempt.” Abetment involves the instigating, aiding, and conspiracy to commit an illegal act, and any person found guilty would be punished with the penalty for the offense they were abetting. The provision on “attempt” provides that any person who attempts to commit an offense or cause an offense to be committed could face the full punishment for the offense or half of the maximum prison term for the offense.

The Syariah Criminal (State of Selangor) Enactment of 1995 contains the same provisions as the Federal Territories act, but some of them are placed in different parts. Sharia criminal enactments for Melaka (Enakmen Kesalahan Syariah, 1991), Negeri Sembilan (Enakmen Jenayah Syariah, 1992), Kedah (Kanun Jenayah Syariah, 1988), and Kelantan (Syariah Criminal Code, 1985) have substantial differences from the Selangor and Federal Territories criminal codes. Nevertheless, there are significant overlaps as they all strive to uphold normative Islamic beliefs and practices, public morality, and the authority of religious institutions. Some of the sharia court officials in these states informed me that they were in the process of having updated enactments passed through the state legislatures and presented before the sultans. Not surprisingly, khalwat or attempted zina is one of the offenses with the highest frequency in figures of sharia criminal offenses reported across the states (see tables 3.1–3.6). Scandalous cases of religious department units discovering and arresting unmarried couples, some of them cheating on their spouses, in hotel rooms or apartments appear often in the mass media.

TABLE 3.2. Criminal cases of the Negeri Selangor State Shariah Court, 2003–2010

Source: Negeri Selangor Shariah Judicial Department.

Melaka, Kedah, and Kelantan have provisions for “abetment” or bersubahat of the commission of an act of unlawful sexual intercourse, although they still have separate provisions for abetment and attempted zina or actions preparatory to zina. Hakim Shukri from Melaka told me that this additional bersubahat provision is especially designed for cases where there is not sufficient evidence to prove that the culprits were attempting to perform unlawful sexual acts, but enough to support the lesser charge of abetment to engage in such immoral behavior. In the many cases where unmarried couples are caught in various states of undress in a secluded place, he stated there is sufficient evidence for the charge of attempted zina. These offenders may have actually committed zina, but they cannot be charged without four witnesses. Yet, if there are fewer witnesses, the court can charge the couple with attempted zina and the witnesses would not be liable to any charge of qazaf because they are witnesses and not accusers. Unlike other states, Melaka does not have a provision for khalwat, but Hakim Shukri informed me that they use their corresponding provision for bersekediaman (Section 53) or their special provision for takzir (Section 92) for cases when unmarried students are alone in a room for many hours, sometimes into the middle of the night, and people in the vicinity are often aware of it. This sort of behavior is wrong according to Islamic values, he asserted, and must be punished. They process a relatively large number of zina and bersekediaman cases (see table 3.3). In Melaka, a person found guilty of attempted zina faces a fine up to RM 5,000 and/or up to three years in prison; those found guilty of bersekediaman face a fine of RM 3,000 and/or up to two years in prison. Punishment under the additional takzir section is limited to RM 500 and/or six months in prison.

TABLE 3.3. Criminal cases of the Melaka State Shariah Court, 2000–2010

Source: Melaka Shariah Judicial Department.

During one of my visits to the Negeri Sembilan Shariah High Court in Seremban, I spoke to the chief registrar, Cik Mamat, about several of the case files I had been reviewing. I first raised a case I found perplexing, concerning a young woman from Alor Gadjah, Melaka, who gave birth out of wedlock at the Kuala Lumpur Hospital. I thought it was a clear-cut case and that she would be punished with a fine and/or prison sentence. He said that the chief prosecutor probably made the decision to retract the charges because the crime occurred in another state. I asked why the prosecutor did not send the case to his counterpart in Kuala Lumpur or Melaka, where she was from. Cik Mamat said the notes do not state his reasons but that the chief prosecutor has the prerogative to retract the charges in any of the cases, and it appears it was done in this case because of the matter of where the crime took place. Another case I asked him about involved a man who was caught by a religious enforcement unit smoking a cigarette in the afternoon during Ramadan in a snooker center. I asked why he was found guilty and sentenced to imprisonment even though it was his first offense and he claimed he was not fasting that day because he had an illness in his gums. The defendant requested a lower fine because he did not have a permanent job and had to support a large family. Cik Mamat explained that it was perhaps because the defendant was loud in court or disrespectful, which reflected poorly on his character. Therefore, the judge did not believe that the sickness in his gums warranted him not fasting and wanted to teach him a lesson with a prison sentence, even for a first-time offense. He was sentenced to fourteen days in prison, beginning that very day, but the appeal court overturned this sentence, changing it to a fine of RM 500 and no prison term. Although sharia law is codified, these sorts of cases indicate the latitude sharia court judges have in deciding to mete out particular forms of punishment. Agrama (2010) argues that the Al-Azhar muftis’ fatwas, in contrast to the personal status court judgments in Egypt, are involved in a process of ethical cultivation as they provide tarbiah (education) for those seeking answers to questions in their personal lives. In Malaysia, I think muftis and sharia court judges are both engaged in the process of developing character and instilling ethical values in members of the Muslim community. The leeway sharia court judges have to perform ijtihad, retract charges, and decide the form of punishment allows space for them to participate in the cultivation of pious selves.

TABLE 3.4. Criminal cases of the Negeri Sembilan State Shariah Court, 2000–2010

Source: Negeri Sembilan Shariah Judicial Department.

The Kedah and Kelantan Shariah Courts provided me with more extensive lists of violations over the last thirteen and six years, respectively (see tables 3.5 and 3.6). Both of their sharia criminal law enactments include provisions for indecent acts and the utterance of indecent words. These offenses are punishable by up to RM 1,000 and/or six months in prison. Otherwise, most of the provisions in these enactments cover the same normative prohibitions as all the other state enactments. However, only Kelantan, Pahang, and Perlis have provisions punishing the consumption of alcohol with the maximum penalties allowed under sharia jurisdictions, including up to six strokes of the cane. From examining these extensive lists, we can note that in both states there are relatively high frequencies of violations relating to marriage and divorce, including improper polygamy and contracting a polygamous marriage without court authorization. This would appear to confirm some of the SIS activists’ criticisms and the need for reform in sharia family laws discussed in chapter 2.

TABLE 3.5. Criminal cases of the Kedah State Shariah Court, 1997–2009

Source: Kedah Shariah Judicial Department.

When I visited the two northern states of Kedah and Kelantan in 2010, both were under governments led by the Islamic Party of Malaysia (PAS). Kelantan, of course, had been under PAS control for around two decades, but the party had recently gained power in Kedah following a hard-fought election in 2008. However, despite the large majority of Malay Muslims and the extensive network of Islamic schools there, similar to Kelantan, the social and cultural milieu in Alor Setar was quite different from Kota Bharu, the respective state capitals. As I walked around the city in Alor Setar, I passed some gambling and snooker halls and noticed some Malay youth selling and buying drugs near the malls. I also got the impression that both state bureaucracies were filled with civil servants of different political orientations. Many of the government officials and clerks in Kedah, including those in the sharia courts, seemed to still be affiliated with UMNO, whereas in Kelantan they were much more oriented toward the PAS ideology and worldview. During my interview of Dato’ Wira Sheikh Yahaya bin Hj. Jusoh, chief justice of the Kedah Shariah Court, I shared with him with the contrast I perceived between the atmospheres in Kedah and Kelantan.

I told him, “I noticed many cases of khalwat and some youth selling drugs here. There is also a gambling hall on the road in the back that I saw when I was walking around. When I went to Kota Bharu I did not see any of these things. Is there a plan to clean everything up here?”

A bit exasperated but without any hesitation, the chief justice responded, “Inshaallah, in the future, we want things like that. The problem is that Malaysia is a diverse society; there are all kinds of people here. If the government authorities say that Muslims don’t want these kinds of places, but you can sell those things to your people if they want it, you can do it. This was the kind of arrangement we had before.... I don’t know but I think the government did this for maintaining harmony. In Kedah, Alhamdulillah, in this effort they don’t want everything, so we do it little by little. We can’t leave all things behind. The situation in Kelantan is different. In Kelantan, for twenty years, the PAS government has been under Tok Guru [Nik Abdul Aziz]. Kedah just had the election in 2008. It has definitely been a longer time there. A big change to society is difficult for the people. Changes have to occur little by little. Islam came down little by little right.”

I also shared these perceptions with the JAKIM legal experts mentioned in the previous chapter and learned that many of them share an often unspoken positive outlook about Kelantan. I told them, “I’ve noticed on a state level a different atmosphere, especially when I’ve gone to the east coast, in terms of the implementation of some sharia laws. I spent some time in Kota Bharu and I noticed that there were no nightclubs and none of the gambling places [they laughed at this], there was no visible alcohol in public places.... It was a very peaceful environment. But it seems that on a state level they have implemented some more regulations or done some things to restrict some licenses to certain types of businesses that engage in maksiat [sinful activities] in Kelantan. Is there any sort of program to try to extend that as you further develop and progress more with Islam in Malaysian society?” I asked.

TABLE 3.6. Criminal cases of the Kelantan State Shariah Court, 2005–2010

Source: Kelantan Shariah Judicial Department.

There were several moments of silence, so I expanded on it and tried to dispel some of the politics: “I’m just thinking on the level of sharia. I know that it has been intertwined with some politics, there is an opposition and everything, but just looking at the level of sharia, has there been some interest in extending that model because it of course relates to the issue of murtad as well?... In some places I’ve been, in Penang, Melaka, and Kuala Lumpur... I even noticed some Muslims going to gambling places, playing numbers, and drinking alcohol, um, so is there an interest in extending that model that would further implement Islamic principles and ethics in society?”

There was some uncomfortable laughter but I remained silent this time. None of the women appeared ready to answer this question. Zawati finally opted to ask me a question to gauge my views: “Among the states which you’ve visited, which is the best model of the Islamic state?”⁸

“Well, in terms of Islamic morality and sharia, I would have to say I was quite impressed with Kelantan. I was able to sleep. When I was in Penang, I stayed in Hotel Malaysia or Hotel Continental on Penang Road, and there were nightclubs all down the street, there were parties, and there was music, cars, and people were shouting.... Some of the windows were open at the bars and people were drinking inside.... None of that was happening when I was in Kelantan... so I have to admit that I felt very peaceful and that I was in a very Islamic environment.”

Aisha offered an explanation: “Actually it depends on the local authority to enforce the laws that have been provided. The law is there. The main thing is in terms of enforcement. I think that is the major reason why it differs from state to state. Each state has laws on gambling, nightclubs, and alcohol, but the difference is in enforcement. We are still working to improve on that area, of enforcement.”

“But when I think about sharia and Islamic morals, that is how I felt. It was a good feeling in that environment in Kelantan,” I added hoping to get them to extend on their perception of this model.

Zawati carefully shared her take on my feelings and exposed their own, generally unstated support of the Kelantan model: “It is like we are in our own country.” She smiled.