KUALA LUMPUR, March 24 — Late last year, the Kelantan state legislative assembly passed the Kelantan Syariah Criminal Code Enactment 2019, which human rights defenders in the country have accused of encroaching on personal liberties and victimising minorities there.
Coming into force on November 21, 2021, the new enactment has increased the number of acts that it deems as criminal under the Shariah code — containing 68 sections altogether, an addition of 33 sections from the previous version passed in 1985.
The enactment also provides for harsher penalties for several acts, listing the maximum possible punishment of RM5,000 fine, three years of imprisonment, and/or six lashes of the cane.
In a report released earlier this week, groups such as Sisters in Islam (SIS), Legal Dignity, and Justice for Sisters (JFS) accused the enactment of further victimising groups who are already marginalised by encouraging discrimination and stigma.
“We are looking at a total state intrusion that is unreasonable and really infringes on the privacy of all individuals — and by extension, it also infringes into the lives of non-Muslim persons,” JFS founder S. Thilaga told Malay Mail.
Malay Mail lists details on how the new enactment may adversely affect the lives of the marginalised and minorities among the Muslim community in the state administered by Islamist party PAS:
According to the report, the enactment has unfairly targeted women, in particular those who are still single, entrepreneurs especially in the line of beauty and cosmetics, human rights defenders, sex workers, lesbians, bisexuals, queer and trans women.
The enactment criminalises indecent acts or speech, the exposure of “aurat”, acts of “lesbianism” it calls musahaqah, non-cis gender expression that it deems as “changing gender or posing as the opposite sex”, and even disobedience to parents.
In Islam, “aurat” refers to certain parts of the human body that must be covered by clothing. Mainstream Muslim interpretation prescribes this as between the navel and the knees for men, and for women to only leave their face and palms uncovered.
In the report, the groups said that the enactment goes against Malaysia’s commitment as a state party to the United Nations’ Convention on the Elimination of All Forms of Discrimination Against Women (Cedaw).
It noted that in 2018, the Cedaw committee on Malaysia expressed concern about how the Shariah legal system has led to a gap in protecting women against discrimination.
It also took note that Malaysia falls short on the global Sustainable Development Goals, failing to commit on key targets such as ending discrimination against women and girls, ending violence and exploitation of women and girls, eliminating force marriages, universal access to reproductive rights and health, and the adoption of policies for gender equality.
While Section 60 of the enactment provides exemptions for children “who have not reached the age of puberty”, the age of puberty itself is not specified unlike in the civil Penal Code that applies to everyone nationwide ― which makes them more vulnerable by the Enactment.
According to the report, at least six sections of the enactment disproportionately affect children and the young, which include selling or giving a child away to a non-Muslim or morally reprehensible Muslim, exposing the aurat, female fleeing custody, wrongful cutting ties with immediate family, disobedience to parents and pregnancy out of wedlock.
“The criminalisation of pregnancy out of wedlock under Section 49 penalises women or girls if they are found to be pregnant, given birth to a child out of wedlock, or given birth to a child in less than 175 days and two lahzah,” it said.
“Lahzah” refers to two types of time periods to determine whether a child is legitimate and not born out of wedlock.
“Meanwhile, a man or boy who causes a woman to be pregnant out of wedlock is also penalised under the section. Both can be sentenced to RM 5,000 in fines, three years of imprisonment and six strokes of cane,” it added.
The report said that this section will not only increase fear of prosecution among unwed parents and people experiencing unintended pregnancies, but also shame and stigma related to pregnancy out of wedlock.
The Enactment introduces two new sections that prohibit so-called “change of gender” and criminalise trans men and masculine persons as well as gender-diverse persons through Section 20.
According to the report, these sections further reinforce misinformation about trans and gender-diverse people as well as gender identity, while causing severe impact on the availability of trans-specific healthcare, protection against discrimination and violence, among others for trans and gender-diverse persons.
“The spillover effect of the enactment on non-Muslim persons is clear in the context of LGBTQ and gender-diverse people.
“The criminalisation and non-recognition of LGBTQ and gender-diverse persons under Shariah laws extend to all persons regardless of religious backgrounds as evidenced by the lack of availability and accessibility to trans specific healthcare and LGBT affirming healthcare services in the national and private healthcare systems, legal gender recognition, protection against violence and discrimination against LGBTQ persons on the basis of sexual orientation, gender identity and gender expression,” the report said.
Human rights groups
Under the new Enactment, human rights groups may face additional barriers in carrying out their work, including providing life-saving support, information and services to those in need.
They face among others: Section 7 (distorting teachings and precepts of Islam), Section 9 (insulting or deriding laws), Section 26 (instigating husband or wife divorce), Section 27 (enticing away any Muslim from custody), Section 30 (words capable or breaking peace) and Section 36 (anything intoxicating).
Business and service providers
The report also claimed that businesses and service providers, ranging from bookstores, health services, beauty and wellness as well as cosmetic entrepreneurs and clothing stores are negatively affected by the enactment.
For example, Section 23 ― which criminalises exposing aurat in public places ― has an impact on the fashion industry and censorship.
“In 2021, the Film Censorship Board had instructed two local stations not to show undergarments being worn by a model or a mannequin during its home shopping segments, as ‘any indecent visual displays, including advertising ‘undergarments’ will still offend the community’,” it said.
“It should also be noted that in order for business owners to receive business permits from the local authority, the business owners must cover their aurat and ensure that their employees comply with the law on covering one’s aurat,” it added.
Earlier this week, the groups called on Putrajaya and the state government to pause and review the recently passed Kelantan Syariah Criminal Code Enactment 2019, which they insist are contrary to constitutionally guaranteed freedoms in Malaysia.
The groups said they found several overlaps with existing Federal Laws such as Penal Code, Criminal Procedure Code and the Dangerous Drug Act, with some provisions infringing on the Federal Constitution which stipulates what falls under the jurisdiction of the state.
“This enactment is problematic, redundant, unnecessary and a waste of resources as it introduces 31 new areas of criminality, most of which fall outside of state jurisdiction and infringe on the rights guaranteed under the Federal Constitution,” Thilaga had said during the report launch.
Malaysia practices a dual-justice system with Islamic matters falling under the purview of each of the separate states.
The Ninth Schedule of the Constitution states that among others the state can only legislate on matters involving the precepts of Islam, while civil and criminal law and procedure and the administration of justice falls under federal jurisdiction.
Last year, the Federal Court has ruled that a Selangor state law's provision which made unnatural sex a Shariah offence was invalid and went against the Federal Constitution, as such offences fall under Parliament's powers to make laws and not under state legislatures' law-making powers.