Sisters in Islam (SIS) and Justice for Sisters (JFS) are concerned over the proposed new sections, amendments and alternative punishments to the existing Terengganu Syariah Criminal Offences (Takzir) Enactment 2001, slated to be tabled at the Terengganu state assembly in November 2022, as announced by the Chief Syarie Judge of Terengganu, Wan Zakri Wan Mohd.
The three ‘improvements’ are:
- Four new sections which are witchcraft and black magic, pregnancy or giving birth out of wedlock, women posing as men and attempted liwat (anal sex or sexual relations between men)
- 21 new amendments to the current provision by maximising the sentence based on provision 356 for three years’ jail, a RM5,000 fine and six strokes of the cane
- The introduction of alternative punishments for the existing provisions
According to Wan Zakri, the Sharia law coordination committee views the three ‘improvements’ to the existing enactment as necessary, given the increasing complex cases dealt by the Sharia courts on an annual basis. The ‘improvements’ are aimed at strengthening Sharia law in Terengganu.
However, contrary to its intentions, the proposed ‘improvements’ only misrepresent Islam as a punitive religion, instead of the inclusive, progressive and tolerant religion Islam is.
Constitutionality of proposed ‘improvements’
Further, the proposed ‘improvements’ are in violation of the Federal Constitution and international human rights law. For example, the four proposed new sections are in violation of the right to health, sexual and reproductive health and rights, privacy, the right to identity and self-determination, freedom of expression, freedom of thought, the right to education, among others.
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These ‘improvements’ undoubtedly have a chilling effect on the freedom of expression among others and further discourage Muslim persons from questioning, challenging or even discussing matters of religion – even when the application of the religion appears unjust and incongruous to changing times and circumstances.
The constitutionality of provisions that criminalise sex against the order of nature and male persons posing as women – two similar provisions to the four new proposed sections – have been contested and found unconstitutional.
As a case in point, the Federal Court, in the constitutional review of Section 28 of the Selangor Syariah Criminal Offences Enactment, which criminalises sex against the order of nature, found the provision to be ultra vires, as it violates Articles 73, 74, and 75 in relation to federal and state jurisdictions in relation to law-making.
In its decision, the Federal Court affirmed that:
[46] If we were to adopt the rather simplistic approach advanced by the respondents that it is sufficient to simply satisfy ourselves that Section 28 of the 1995 Enactment is squarely encapsulated within the definition of ‘precepts of Islam’ without regard to the preclusion clause, that would render the preclusion clause otiose.
Similarly, in the review of Section 66 of the Negeri Sembilan Sharia criminal offences, the Court of Appeal found the section being inconsistent with several articles in the Federal Constitution, in particular articles that protect fundamental liberties, equality before the law, gender-based discrimination, freedom of expression and movement.
While the Federal Court set aside the Court of Appeal and High Court’s decisions on the constitutionality of Section 66, in Alma Nudo Atenza v PP & another appeal, the Federal Court judges held that there was an error in the Federal Court decision.
Systemic impact of criminalisation
Criminalisation of pregnancy out of wedlock has a significant, systemic and long-term impact on women and young people.
According to Unicef’s “Situation Analysis of Adolescents”, pregnant teenagers are denied access to education due to stigma and shame, resulting in them dropping out of school.
Conversely, the study also cites a 2015 nationwide study that showed a very low knowledge of how to prevent unplanned pregnancies and lack of awareness of contraceptives methods, aside from condoms and birth control pills of young people aged between 18 and 29.
The study also shows Terengganu is one of three states with the highest cases of child marriages applications via the Sharia courts.
Sisters in Islam (SIS) and Arrow’s research shows pregnancy and sex out of wedlock as being one of the main contributory factors to child marriage in Malaysia. As such, the criminalisation of pregnancy out of wedlock also has a reciprocal effect on child marriage and contributes to an increase in child marriage.
Following the criminalisation of pregnancy out of wedlock in the newly introduced Kelantan Syariah Enactment 2019, at least five cases were reported in just two months, between January and February 2022.
Research and sexual reproductive health and rights advocates attribute fear of prosecution under the Penal Code and state Sharia criminal enactments as one of the main factors that cause parents to abandon their babies. Instead of criminalisation, the government is recommended to introduce comprehensive sexuality education and the promotion of contraceptives.
Additionally, it is not clear if the proposed amendments would take into account survivors who have become pregnant by sexual assault. Criminalisation would surely deter such survivors from coming forward if they fear prosecution under the law.
The ‘improvements’ will have harmful impacts on women, young people and marginalised groups, including LGBT persons and Muslims of minority sects. These improvements take Malaysia further away from its obligations under the Convention on the Elimination All Forms of Discrimination Against Women (Cedaw) and the Convention on Rights of the Child and its commitments to the sustainable development goals
Alternative punishments
Our analysis of the ‘alternative punishments’ introduced in the Kelantan Syariah Criminal Offences Enactment 2019 has found that these punishments are still punitive and imposed against acts that should not even be criminalised in the first place, raising concerns over further victimisation under the law.
For example, rehabilitation is imposed against 34 ‘offences’ under the Kelantan enactment. This includes for exposing aurat, against transgender and gender-diverse persons who are prosecuted based on their gender expression and gender identity, apostasy. These so-called offences are not criminal offences to begin with and punishing them with rehabilitation or community service could further result in deprivation of dignity and freedoms.
Further, arguably, the imposition of “alternative” punishments such as community service and rehabilitation goes beyond what is permitted under Act 355 – a RM5,000 fine, a maximum three years of prison sentence and six strokes of the cane.
We recommend that the Terengganu state government and the committee:
● Seek technical support from Suhakam, the Bar Council and human rights groups, including but not limited to
sexual and reproductive health and rights groups, to review the compatibility of the proposed ‘improvements’ with the Federal Consititution and human rights and assess their impact on affected communities
● Postpone its plans to table the ‘improvements’ at the Terengganu state assembly in November 2022, pending the Federal Court decision on the constitutionality of the Kelantan enactment
Endorsed by:
- Advancing Knowledge in Democracy and Law initiative
- Asian-Pacific Resource and Research Centre for Women (Arrow)
- All Women’s Action Society (Awam)
- Center for Independent Journalism (CIJ)
- Family Frontiers
- Freedom Film Network
- For Youth Initiative Kuala Lumpur
- Reproductive Rights Advocacy Alliance Malaysia
- Seed Malaysia
- Kryss Network
- Legal Dignity
- Malaysian Action for Justice & Unity Foundation (Maju)
- Malaysian Doctors for Women and Children
- Perak Women for Women Society
- Persatuan Kesedaran Komuniti Selangor (Empower)
- Pusat Komas
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