KUALA LUMPUR, Oct 8 — Three unrepresented Muslim women were sentenced to caning after pleading guilty in two Shariah cases for attempted lesbian sex and prostitution in Terengganu, throwing the spotlight on the lack of legal representation in Islamic criminal cases.
Like them, others accused of Shariah offences — which open them up to three years’ imprisonment and public caning over mostly victimless crimes like consuming alcohol or extramarital sex — often appear in court unrepresented.
Although the National Legal Aid Foundation (YBGK) — which is jointly coordinated by the Bar Council and the government — provides legal assistance in criminal cases, it does not provide regular aid to Muslims charged with Shariah offences due to lack of training and a proper scheme.
“As far as the YBGK steering committee is concerned, we’re trying to get it sorted out by this term to finalise the Shariah module for YBGK,” steering committee co-chairman Ravin Singh told Malay Mail, referring to a February 2019 deadline.
“We’re seeking a meeting with the Attorney-General to discuss a few YBGK matters — this is one of it.”
Ravin said YBGK lawyers must undergo compulsory training to qualify for such cases, but very few attend training for Shariah work. Some lawyers did take on Shariah criminal cases a year or two ago, but the work has since stopped, he said.
The government’s Legal Aid Department also does not provide assistance in Shariah criminal cases; it handles Shariah family matters.
Persatuan Peguam Syarie Malaysia (PGSM) president Musa Awang said his group will launch Shariah Legal Aid Centres in December throughout the country, starting in the Kuala Lumpur Shariah Court, to provide legal assistance in Shariah family and criminal cases.
The centres dubbed BAGUS (Pusat Bantuan Guaman Shariah) will focus on Shariah family matters first, said Musa, before tackling Shariah criminal cases hopefully by July 2019.
“BAGUS will be set up in special rooms, the PGSM secretariat, or lawyers’ rooms at the Shariah court (depending on the available facilities),” Musa told Malay Mail.
“PGSM will appoint a panel of accredited Syarie lawyers, who have a Syarie certificate of practice in the relevant state, as the BAGUS Syarie Lawyer Panel.”
Legal aid under BAGUS will be limited to those earning RM30,000 a year or less, or those with an annual income of between RM30,000 and RM50,000.
Musa said PGSM, which currently has 600 members, manages YBGK’s Shariah matters throughout the country except for Kelantan, Terengganu, and Pahang, as the association was still setting up branches in those states, which it hoped to complete by next year.
He also said Shariah courts should have the prosecution notify PGSM or YBGK before filing charges so that legal aid could be provided if needed.
“There is no such procedure currently. It depends on the client to get a lawyer. Such a procedure should be implemented.”
Datuk Kuthubul Zaman Bukhari, chairman of the Bar Council Shariah Committee, said the panel has recommended a scheme for Shariah criminal work similar with the civil courts’ criminal jurisdiction.
“The same rate to be given when they appear as counsel when the accused is charged in court. The prosecution needs to inform before charging so that a counsel can attend court.
“For the criminal court, the Bar Council Legal Aid Committee will be notified. So there must be similar mechanism, but you must ask YBGK who the prosecution needs to contact,” Kuthubul told Malay Mail.
He said it was in the best interest of the accused to be represented by lawyers in all criminal matters, including Shariah-related cases.
“Hence the government must ensure that everyone has access to justice. It is a fundamental human right.”
Most accused Shariah criminals don’t get lawyers
One Shariah judge who requested anonymity said most Muslims charged with Shariah offences did not have lawyers acting for them.
“One of the biggest reasons is because of the fine. The maximum fine that can be imposed is RM5,000.
“So if they want to appoint lawyers to represent them, they have to pay more than the fine that will be imposed on them,” the judge told Malay Mail.
The Shariah judge also said by right, Shariah courts should typically impose lighter punishments if the accused pleaded guilty and if it was a first offence. The two recent Terengganu cases involving a lesbian couple and a single mother saw the accused receiving the maximum sentence of six strokes despite their guilty pleas.
Shariah court sentences are limited to three years’ jail, six lashes of the cane, or a RM5,000 fine. PAS has been pushing for legal amendments to raise the sentencing limits to 30 years’ jail, 100 strokes, and RM100,000 fines.
Justice for Sisters (JFS), an advocacy group for the lesbian, gay, bisexual and transgender (LGBT) community, said it has experienced difficulty obtaining legal representation for its clients who were charged under anti-crossdressing state laws, among other Shariah offences.
JFS has dealt with six to eight cases this year.
“We have been in situations where transwomen have had to change their pleas and plead guilty due to lack of friendly lawyers and lack of adequate counsel,” JFS co-founder S. Thilaga told Malay Mail.
“We have had Shariah lawyers who were unwilling to present transwomen in court.
“We have also dealt with Shariah lawyers who are willing to represent transwomen, but are not respectful of the trans-women's gender identity, for example, misgendering of trans-women.
“When lawyers misgender transwomen, it immediately creates barriers and lack of confidence in the lawyers to provide adequate legal counsel and representation trans-women in court.”
The LGBT activist also said although JFS sometimes obtained lawyers who were willing to represent transwomen, they did not provide adequate counsel and refused to make “progressive” arguments in court.
“Some common situations that we have dealt with include suggestions to plead guilty to cut down time and hassle and get it over and done with. As a result, trans women have limited access to justice and right to due process.”
Muslim women’s rights group Sisters in Islam described the problem of getting legal representation for people charged with Shariah offences as a “systemic” one.
“Many provisions under the Shariah Criminal Offences Act (SCOA) intrude into the lives and privacy of Muslims and contradict fundamental liberties that they rightfully have under the Federal Constitution.
“This makes the duties of a Shariah lawyer not only complicated, but also brings in an unnecessary moral dimension to the cases that they undertake,” SIS told Malay Mail.
SIS said its Telenisa helpline provided free legal advice on one’s rights in relation to Muslim family law and the SCOA.
“Over the years, we have helped thousands of clients with all kinds of issues with regards to their rights.”
Equating legal representation to defending “enemies” of Islam
Rosli Dahlan, a civil rights and Syarie lawyer, said Shariah courts sometimes took the position that people accused of religious offences should not be defended because their alleged crimes were “wrong”.
“So as a result, not many lawyers want to do such cases,” Rosli told Malay Mail.
“With the antagonistic attitude of the Shariah judiciary, it is very difficult for Syarie lawyers to earn a livelihood. The bulk of their cases is family (matters). It could affect their livelihood, so they would rather not do it.”
Rosli, who successfully defended the late Muslim intellectual Kassim Ahmad from Shariah charges of insulting Islam and defying religious authorities, said he was perceived as being “with the enemies of Islam against Islam” in that case.
“It's a bit of an anomaly. We must give people the right to be defended. But because of Shariah attitude and Muslim attitude per se, every time I fight against the Shariah prosecutor, it's as if I'm defending wrongdoers against Islam,” the lawyer said.
“How do I say I don't support LGBT, but I believe they are to be defended?”