KUALA LUMPUR, April 29 ― Rather than revising the Federal Constitution, Kelantan hopes to give the Shariah Court more firepower to crack down on Muslims who murder, rape and rob with its proposal to enforce a fundamental brand of Islamic justice.
Kelantan deputy mentri besar Datuk Mohd Amar Nik Abdullah says the PAS-led state government is seeking to create a new federal law to empower the Islamic court to try Muslims for serious crimes.
He said once Islamic criminal law is enforced in Kelantan, all Muslim offenders will be subject to it, while non-Muslims will continue to be tried under conventional law.
Muslims must face Shariah Courts even if their victims are non-Muslims and would not be tried for the same offence under both Islamic and conventional law, he said.
He argued that Malaysia's Penal Code lacks bite to cut the country's rising crime rate.
“The first bill is to seek approval to enact punishment for crimes under the Penal Code,” Mohd Amar told The Malay Mail Online in a recent phone interview.
“Second bill is amend the Shariah Court Act to give freedom for the state to enact punishment higher than what it is now,” the PAS leader added.
The Islamist party created a storm nationwide with its proposal to push two private members' bills at the next Dewan Rakyat sitting to finally allow it to roll out the Islamic criminal justice system by next year.
PAS also seeks to amend the Shariah Courts (Criminal) Jurisdiction Act 1965 to enable the Islamic Court the right to mete out the death penalty and amputations. The Act limits the Shariah courts to jail sentences of not more than three years in jail, six strokes of whipping, and fines not exceeding RM5,000.
Mohd Amar stressed that both bills did not seek to amend Malaysia's constitution, which requires a two-thirds majority vote in the Dewan Rakyat before it can become legislation.
Criminal cases are currently handled by the conventional court system, while the Shariah court’s jurisdiction covers personal law, family law, as well as laws against the precepts of Islam, like “khalwat”, or close proximity, for Muslims.
The new federal law ― which PAS will lay out in parliament to enable the Shariah Court to punish Muslim criminals ― covers murder, causing hurt, rape, sodomy, theft and robbery, all of which are currently offences under the Penal Code.
Mohd Amar, however, did not explain how the new law could co-exist with the Penal Code that covers everyone in Malaysia, regardless of religion.
Article 2 of the Penal Code states that “every person” is liable to punishment under the Penal Code for offences committed in Malaysia listed under that law.
The Panchor assemblyman explained that the Islamic criminal justice system which Kelantan hopes to enforce by next year comprises both “hudud” law ― which covers six offences: apostasy, illicit sexual relations , alcohol consumption, making unproven accusations of illicit sex, theft and robbery ― as well as “qisas” ― which covers murder and causing hurt.
Illicit sexual relations include adultery, premarital sex, rape and sodomy.
“Hudud” means God’s limits, while “qisas” means retaliation.
According to Mohd Amar, apostasy, murder and adultery are punishable by death. Adulterers are subject to death by stoning, while Kelantan will leave it to the courts to decide on the method of execution for murderers and Muslims who renounce their religion.
Muslims who have premarital sex will be lashed 100 times.
Muslims found guilty of rape or sodomy will be subject to the same punishment as adultery of premarital sex, either death by stoning or 100 lashes, depending on their marital status.
Muslims who make unproven accusations of illicit sex will also face 100 lashes.
Muslims who imbibe alcohol will be whipped 80 times.
Muslims convicted of robbery could have a hand and a foot amputated, at the discretion of the court, while robbery that results in a killing can be punished with a death sentence.
Muslim thieves will have their hand, usually the right, chopped off.
Under the “qisas” law of retaliation, Muslims accused of injuring another will be punished by having the same act done to them.
“An eye for an eye, and a tooth for a tooth,” said Mohd Amar.
“So, the purpose of the law is not to punish, but to pose a deterrent,” the 54-year-old said.
He said the burden of proof in Shariah law is “very heavy”, citing the requirement of having four Muslim male witnesses of good character to observe the entire act for the crime of illicit sex, which he said was “almost impossible”.
When asked how rape victims can obtain justice if they fail to secure four witnesses, he said that the rapist can still be punished even if they get one witness, or if they get a psychologist or doctor to testify to the rape, though he did not specify if evidence from a non-Muslim would rank equal to evidence from a Muslim.
“Maybe 50 lashes or he will be imprisoned,” said Mohd Amar.
“If she can prove that she was raped, she won't be accused of adultery,” he added.
Mohd Amar also said that if there is insufficient evidence to punish a thief under “hudud” law or if the amount stolen is small, the criminal may go to jail or pay a fine instead of amputation.
He, however, did not specify the worth of goods stolen or the strength of evidence that would merit an amputation.
The Kelantan deputy MB also said that for crimes not covered by Islamic law, such as cheating or criminal breach of trust, Muslims would be tried under the conventional court system.