INTERNATIONAL CONFERENCE OF ASEAN PERSPECTIVE AND POLICY
Islam and Shariah Offences in Malaysian Constitutional Framework: Issues and Challenges Tajul Aris Ahmad Bustami Asst.
Prof.
Department of Islamic Law.
Ahmad Ibrahim Kulliyyah of Laws.
International Islamic
University Malaysia
ABSTRACT
This paper discusses the position of Islam in the Malaysian constitution and the enforcement of laws relating to shariah offences in Malaysia.
It looks at the basic governing legal provisions relating toIslam and shariah offences both at Federal and State levels.
The authorities and powers provided for the syariah courts officers and judges are also analysed.
This paper focuses on the legal issues surrounding the investigation, prosecuting and courtsAo power in dealing with the offences.
With the current state of legal provisions and infrastructures, the paper finds that there are many rooms for the improvement for the Islamic Legal system in Malaysia particularly with regard to the upgrading the status, image and jurisdiction of the syariah courts.
Keywords: Islam, syariah court, shariah offence, jurisdiction, legal system Improvement of the related issues shall also be discussed.
INTRODUCTION
Malaysia is a unique country, known for having a dual system of laws and courts system.
As Malaysia, historically, was under the British colonialisation, she applies the English Common Law that is applicable in civil courts.
The Islamic law, as the personal law of the majority of the citizens, on the hand is applied in the syariah courts.
The syariah courts have the absolute jurisdiction to hear and decide cases on shariah offences in Malaysia.
BRIEF OVERVIEW OF MALAYSIAN
LEGAL SYSTEM
This paper seeks to discuss the position of Islam in the Federal Constitution,shariah offences in Malaysia and how these offences are dealt with by the relevant authorities.
The issues and challenges surrounding the enforcement of shariah criminal law will be addressed.
Since independence in 1957, federalism is applied in Malaysia whereby the government operates simultaneously at Federal and State levelsrespecting the Constitutional Monarchy that has become the back-bone principle in the Malaysian legal system.
The Constitutional Monarchy system provides that the Rulers of the nine Malay States2 are the Heads oftheir respective States while the Head of State of the Federation isthe Yang di-Pertuan Agong .
he Kin.
who is elected by the MalayRulers amongst themselves through the Conference of Rulers fora five year term.
This paper begins with the basic concepts of Malaysia legal system relating to Islam.
Islamic law and jurisdiction of the syariah As there are too many issues that may involve and with the space/time constraints of this paper, it focuses on several selected main issues that have become frequently debated At Federal level, the three organs of the Federation are the executive, thelegislature and the judiciary.
The Yang di-Pertuan Agong is the Headof the Executive and The Prime Minister leads the cabinet.
Parliament3is the federal components,namely.
Yang di-Pertuan Agong.
Throughout this article, spelling AoshariahAo is used instead of AosyariahAo.
Nevertheless, the spelling of AosyariahAo will be used in reference to the court eg Aosyariah courtAo and the law eg Syariah Court (Criminal Jurisdictio.
Act 1965 as this spelling is officially used in the written laws in Malaysia.
As it is used together with AocourtAo, it will not be italicized.
The States are Perlis.
Kedah.
Perak.
Selangor.
Negeri Sembilan.
Johor.
Pahang.
Terengganu and Kelantan.
There are States that do not sultans and the Yang di-Pertuan Agong becomes the Head of Islam in these States.
They are Melaka.
Pulau Pinang.
Sabah and Sarawak.
Its jurisdiction is provided in the Federal and Concurrent Lists of the Federal Constitution.
INTERNATIONAL CONFERENCE OF ASEAN PERSPECTIVE AND POLICY
the House of Representatives andthe Senate.
The civil court system is the judiciary for the whole Federation.
At State level.
At State level, the Sultan4 is the Head of the Executive and the Menteri Besar (Chief Ministe.
leads the State The legislative is called State Legislative Assembly.
5 The civil courts and syariah courts operate at State level having their respective jurisdictions.
ISLAM
THE
CONSTITUTION
FEDERAL
The Federal Constitution provides that Islam is the religion of the Federation with the allowance of other religions to be practised in Malaysia.
8The constitution also guarantee the freedom of religions and the freedom to practice it in Malaysia.
9 The Federal Constitution, however, remains as the highest law of the The supreme law of the Federation is the Federal Constitution.
Each State of the Federation has its own constitution too.
Not only does the Federal Constitution expressly provide that Islam is the religion of the Federation, the constitution of each State except Sarawak also expressly provides that Islam is the religion of the State.
Thus.
Malaysia is not a secular State.
The Federal Constitution enumerates legislative matters for Parliament and for the State Legislative Assemblies.
The jurisdiction of the civil court and the syariah courts also spelt out in the FederalConstitution.
The two courts are independent of one another and they are parallel systems.
Islam and Islamic law are State matters.
States have the legislative power to enact on Islamic law applicable to Muslims.
With respect to the Federal Territories, it is Parliament that has thelegislative power to enact on Islamic law.
The syariah courts have jurisdiction in such Islamic law matters.
Legislations on Islamic law include Administration of Islamic Law Enactments.
Islamic Family Law Enactments.
Syariah Criminal Offences Enactments.
Syariah Court Evidence Enactments.
Syariah Court Civil Procedure Enactments and Syariah Criminal Procedure Enactments.
The case of Che Omar Che Soh v Public Prosecutor,11 perhaps is the first ever case in the Malaysian legal history that dealt with the interpretation of Article 3.
of the Federal Constitution.
The Supreme Court, being the highest court, had given a controversial decision by taking a historical approach in construing articles 3.
of the Federal Constitution.
The court decided that, inter alia.
AoIslam is the religion of the FederationAo means AoIslamAoin this Article is confined to the Aoritual and ceremonyAo only Ae an interpretation that provides that Article 3 possibly carries no legal effect at all.
Much has been critised on this interpretation particularly in a country where majority of its citizen are Muslims.
From time to time through courtsAo decisions, we could see the interpretation has been given a new more sensible meaning.
seems that the later cases inclined to adopt wider interpretation of Article 3 to mean AoIslam as a complete way of lifeAo.
This can be seen in the decisions in Meor Atiqulrahman bin Ishak dan lain-lain lwn Fatimah bte Sihi dan lain- See Article 3.
of the Federal Constitution that provides AoIslam is the religion of the Federation.
but other religionsmay be practised in peace and harmony in any part of the FederationAo.
See Article 11.
of the Federal Constitution that provides Aoevery person has the right to profess and practise his religion and, subject to Clause .
, to propagate itAo.
See Article 4.
of the Federal Constitution that provides Aothis Constitution is the supreme law of the Federation andany law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be voidAo.
2 MLJ 55.
Supreme Court led by Tun Salleh Abas LP.
Sultan is the official name used in most of the States except Perlis and Negeri Sembilan where the post is known as Raja and Yang di-Pertuan Besar respectively.
Its jurisdiction is provided in the State and Concurrent Lists of the Federal Constitution as well as respective StateAos Constitution.
See the Federal.
State.
Concurrent Lists and Article 121.
A) of the Federal Constitution.
For further reading see Farid Sufian Shuaib.
Tajul Aris Ahmad Bustami & Mohd Hisham Mohd Kamal.
Administration of Islamic Law in Malaysia: Text and Material.
Kuala Lumpur:
LexisNexis, 2010.
INTERNATIONAL CONFERENCE OF ASEAN PERSPECTIVE AND POLICY
lain12 and Lina Joy v Majlis Agama Islam Wilayah & Anor.
13It can be said that the new interpretation represent the true concept of Islam andmore accurate as compared to the one in Che Omar Che Soh.
the Federal List.
Ay18For few decades, the meaning of Auoffenses against the precepts of IslamAy was uncertain until it was finally addressed in the case Sulaiman bin Takrib v Kerajaan Negeri Terengganu and Ors.
19 Abdul Hamid Mohamad CJ decided that the phrase should cover all offences that are against the injunctions of Al-QurAoan, al-Sunnah, ijmaAo, fatwa and religious authorities.
It does not confine to the offences relating to 5 pillars of Islam20 only.
SYARIAH COURT
By virtue of item 1.
State List of the Federal Constitution, organization and procedure of syariah courts are established by the State legislatures.
In case of the Federal Territories, its syariah courts are established by Act of Parliament by virtue of item 6.
of the Federal List.
In monitoring the State governments to effectively enact and enforce the Islamic criminal law, the Parliament in 1965 has passed Syariah Courts (Criminal Jurisdictio.
Act of 1965 .
s amended in 1.
The Act confers sentencing powers to the syariah courts to the limit of 3 years imprisonment.
RM5,000 fines, six strokes or any combination thereof.
21Such jurisdictions might be appropriate in 1984 but they are relatively low in our present day.
It is interesting to note that, since 1984, there is no increase in the jurisdiction even though,from time to time, many parties have seriously proposed for it.
The increase would definitely upgrade the status of the syariah courts to be at par with their civil counterparts.
The Federal Constitution empowers the syariah courts civil and criminal jurisdictions.
civil jurisdiction, syariah courts can adjudicate cases arising under AuIslamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to betrothal, marriage, divorce, dower, guardianship, inheritance, gift and waqf.
15For family matters, the syariah courts refer to Islamic family laws enacted by the states.
Apart from matters of religious observance and personal status law, the States also have some power to enact and enforce Islamic criminal law.
Although criminal law is generally under the jurisdiction of the federal government,17 state governments can create their own laws to cover Auoffences by persons professing the religion of Islam against precepts of that religion Ae exceptin regard to matters in APPLICABLE ISLAMIC CRIMINAL
LAWS
Malaysia achieved her independence on 31st August 1957 and since then sheupholds the Malaysia consists of a Federal administration centred at Putrajaya where the legislative body is known as Parliament.
States governments whose laws are passed by the State legislative assembly.
The Federal Constitution is the supreme law of the land and all other laws should be consistent with its .
5 MLJ375.
High Court.
Mohd Nor Abddullah J.
2 MLJ 119.
High Court.
Faiza Tamby Chik J.
Unfortunately both cases were decided by the High Court which is inferior that the Supreme Court or its equivalent Ae Federal Court.
The decision in Che Omar Che Soh stands until being overruled by the Federal Court.
There is no case afterwards that dealt specifically with this issue.
See Federal Constitution, article 74, 9th Schedule (State List, item .
See for eg Islamic Family Law (Federal Territorie.
Act 1984 (Act 303 of 1.
Islamic Family Law (State of Selango.
Enactment 2003 (Enactment 2 of 2.
See Federal Constitution, 9th Schedule (Federal List, item .
By virtue of the Federal Constitution, the Islamic law is under the StatesAo administration and the law is legislated and passed by the See Federal Constitution, article 74, 9th Schedule (State List, item .
6 MLJ 354.
FC.
Offences relating to shahadah, prayer, fasting, zakat and pilgrimage.
See section 2 of the Act.
Article 4 of the Federal Constitution.
INTERNATIONAL CONFERENCE OF ASEAN PERSPECTIVE AND POLICY
the religion of Islam.
28 deriding Quranic verses and sunnah.
29 contempt or defiance of religious 30 defiance of court order.
religious teaching without tauliah.
32 opinion contrary to fatwa.
33 religious publication that is contrary to Islamic law.
34failure to perform Friday prayer.
35 disrespect for Ramadhan.
non-payment of zakat.
37 instigating someone to neglect any religious duty.
38 gambling39 and offences related to intoxicating drinks.
individual State Legislative Assembly.
23For the purpose of this article, the reference will be made to the Federal TerritoriesAo laws.
The followings are among the relevant legal provisions that relate to the enforcement of syariah offences in Malaysia:
Federal Constitution, 9th Schedule.
State List.
List II.
Syariah Court (Criminal Jurisdictio.
Act 1965 (ACT .
Syariah Criminal Offences (Federal Territorie.
Act 1997 (ACT .
Syariah Criminal Prosedure (Federal Territorie.
Act 1997 (ACT .
Offences on decency involve incest.
TYPES OF SHARIAHOFFENCES
The shariah offences are triable by the StatesAo syariah courts.
The Syariah Criminal Offences (Federal Territorie.
Act 1997 categorises the types of the shariah offences as See section 7 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
See section 8 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
See section 9 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
See section 10 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
See section 11 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
See section 12 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
See section 13 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
See section 14 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
See section 15 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
See section 16 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
See section 17 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
See section 18 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
See section 19 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
See section 20 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
See section 21 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
See section 22 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
See section 23 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
See section 24 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
Offences relating to AoAqidah.
Offences relating to the sanctity of the religion of Islam and its institution.
Offences relating to decency.
Miscellaneous offences.
Offences relating family law.
Offences relating to Aoaqidah consist of wrongful worship that is contrary to Islamic 24 false doctrine that is contrary to Islamic 25 propagation of other religious doctrines to Muslims26 and false claim to be prophet or Imam Mahdi.
Offences that relate to the sanctity of the Islam and its institution comprise of insulting Except in case of Federal Territories where its laws are also passed by the Parliament due to special setup made by the federal government when Federal Territory of Kuala Lumpur was established in 1974.
This set up was maintained when Labuan and Putrajaya joined the Federal Territories respectively in 1984 and 2001.
See section 3 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
See section 4 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
See section 5 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
See section 6 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
INTERNATIONAL CONFERENCE OF ASEAN PERSPECTIVE AND POLICY
lesbian,47khalwat,48male poses as women49 and indecent act in public.
offences are, among others, offences of marriage without permission.
65 divorce outside court66 and polygamy without courtAos Miscellaneous offences refer to giving false collecting zakat without authority.
54 illegal payment of zakat.
55 encouraging vice.
enticing a married woman.
57 preventing marries couple from cohabiting.
58 instigating married couple to divorce or to neglect their duties.
enticing female person.
60 selling or giving away child to non-Muslim.
61qazaf,62 abuse of halalsign63and abetment.
JURISDICTION
SYARIAH
COURTS ON CRIMINAL OFFENCES
The discussion on the jurisdiction of syariah courts with regard to the investigation and prosecution of the shariah offences will be looked from the following aspects:
Islamic criminal offences in the Federal Constitution.
Sentencing power of the syariah court.
Territorial jurisdiction of the syariah Offences relating to family law refer to list of offences provided by Islamic Family Law (Federal Territorie.
Act 1984 (ACT .
The See section 25 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
See section 26 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
See section 27 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
See section 28 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
See section 29 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
See section 30 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
See section 31 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
See section 32 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
See section 33 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
See section 34 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
See section 35 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
See section 36 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
See section 37 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
See section 38 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
See section 39 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
See section 40 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
See section 41 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
See section 42 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
See section 43 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
1 Islamic Criminal Offences in the Federal Constitution Syariah courts are conferred with jurisdiction in respect of offences against the precept of the religion of Islam committed by persons professing that religion.
68As for the prosecution of shariah offences by the syariah courts, the 9th Schedule.
State List.
List II.
Item 1 of the Federal Constitution outlines three issues that must be satisfied, namely the .
must be against the precept of religion of Islam.
committed by a Muslim/Muslims.
must be prescribed under any written Firstly,the offence must be contrary to the precept of the religion of Islam.
The meaning ofAooffences against the precept of the religion of IslamAo was addressed in the case of Sulaiman Takrib v Kerajaan Negeri Terengganu69 where the petitioner and several others were arrested for disobeying the 1997 fatwa regarding the See section 40.
of Islamic Family Law (Federal Territorie.
Act 1984, read together with section 19 of the same Act.
See section 124 of Islamic Family Law (Federal Territorie.
Act 1984.
See section 123 of Islamic Family Law (Federal Territorie.
Act 1984.
See 9th Schedule.
State List.
List II.
Item 1 of the Federal Constitution.
4 MLJ 354.
FC.
INTERNATIONAL CONFERENCE OF ASEAN PERSPECTIVE AND POLICY
prohibition of teaching and practicing of Ayah PinAos doctrine.
The word AopreceptAo is not defined in the Federal Constitution.
After hearing the views of three experts in Islamic law, the Federal Court decided that Aooffences against the precept of the religion of IslamAo referred to Aooffences which are contrary to Hukum SyarakAo.
70 This interpretation gives wider power to the legislative to legislate and to the court to prosecute any offences that are not in line with Hukum Syarak.
Meaning to say, the offences are not confined to those against the pillars of Islam .
ukun Isla.
Court is satisfied with the implied conferment of the jurisdiction.
74 However for a convenient implementation of law and to avoid any untoward claim, the syariah court prosecutor will only prosecute offences that are only provided by written laws.
2 Sentencing Power of the Syariah Courts The establishment and general jurisdiction of the syariah courts in Malaysia are provided by the Federal Constitution, which were later provided again in the forms of State laws.
The extent of the sentencing power of the syariah court is governed by the federal law.
Syariah Court (Criminal Jurisctio.
Act 1965 (ACT 76 This Act limits the sentencing power of the syariah to imprisonment of not more than 5 years, fines of not more than RM5000 and whipping of not more than 6 strokes or any combination thereof.
77 The States later on legislated their laws according to this confined jurisdiction and could not go beyond.
Article 75 of the Federal Constitution provides that in the event of inconsistencies between State law and the federal law, the State law will become null and void to the extent of the inconsistencies.
Secondly, the offences must be committed by Muslim/Muslims only.
71 Since the offences are related to the religion of Islam, the syariah court has no jurisdiction should the offence be committed by a non-Muslim.
It is interesting to note that for the offence of khalwat .
he offence that must be committed by two individual.
between a Muslim and a non-Muslim, only the Muslim could be brought to the syariah court while the non-Muslim suspect is to be released.
This is simply because the syariah court has no jurisdiction over non-Muslims and in fact khalwat is not an offence to them under any Likewise, the implication of this Act is that the syariah court could not sentence beyond of this confined jurisdiction, otherwise it becomes Thirdly, the offence must be prescribed under any written law.
It is a tricky issue when it involves an offence that is prescribed by the Federal Constitution but is not prescribed by any State written law.
72Even though the old trend of the Federal Court required the express conferment of such jurisdiction to the syariah court,73 the later trend proposes that the Federal .
3 MLJ 487 and Lim Chan Seng lwn Pengarah Jabatan Agama Islam & Satu yang Lain .
3 CLJ 231.
See for example Md Hakim Lee v Majlis Agama Islam Wilayah Persekutuan.
Kuala Lumpur .
1 MLJ 681.
Soon Singh a/l Bikar Singh v Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah & Anor .
1 MLJ 489.
FC and Lina Joy lwn Majlis Agama Islam Wilayah Persekutuan dan Lain-lain .
1 MLJ 585.
FC.
Written laws in this context include gazette fatwa issued and endorsed by relevant authorized bodies.
In Malaysia, a fatwa will be prepared by Fatwa Committee, brought to the State Legislative Assembly for deliberation and then gazetted as a law.
Any fatwa that is not properly gazette remains as an advice and has no legal effect.
See for example section 34.
and 34 .
of the Administration of Islamic Law (Federal Territories Ac.
See also Pendakwa Syaryie lwn.
Fahyu Hanim Ahmad dll, .
Jurnal Syariah 8 .
As amended in 1984 and revised in 1988.
See section 2 of the Act.
See the arguments by the governmentAos experts.
Tan Sri Sheikh Ghazali bin Haji Abdul Rahman .
he Director General of the Syariah Judicial Department of Malaysi.
and Professor Tan Sri Dr Mohd Kamal Hassan .
he former Rector of the International Islamic University Malaysi.
and the petitionerAos expert.
Professor Muhammad Hashim Kamali .
n academician and a book write.
See 9th Schedule.
State List.
List II.
Item 1 of the Federal Constitution and section 1 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
For example the offence of renunciation of religion of Islam .
where no State has made it an offence even though it is impliedly provided in the Federal Constitution.
See for example.
Ng Wan Chan v Majlis Ugama Islam Wilayah Persekutuan & Anor
INTERNATIONAL CONFERENCE OF ASEAN PERSPECTIVE AND POLICY
In the modern era, these confined jurisdictions could not serve justice well as the people are not afraid of the The time has come for the increase of such jurisdiction to make syariah court as competitive as civil court that enjoy wider A bill to increase these jurisdiction has been tabled in Parliament this year and it has been debated and voted yet.
This issue will not deliberated here as this is not the objective of this paper.
The followings are the legal and technical that may arise on the implementation of the law.
1 Offences that are Practically Hard to be Prosecuted at the Syariah Courts The Syariah Criminal Offences (Federal Territorie.
Act 1997 outlines more than 40 shariah offences triable by the syariah courts.
Out of these offences, offences relating to Aoaqidah dan decency have been the main and frequently tried offences in courts.
However, some of the offences remain as offences in law but are not brought to the courts for trial due to its impracticality and difficulty to enforce.
3 Territorial Jurisdiction of the Syariah Court As the initial establishment of the syariah courts is provided by the 9th Schedule.
State List of the Federal Constitution, they are considered as StateAos courts.
Laws relating to the court shall only enforceable within the StateAos boundaries 78For the enforcement outside jurisdiction, the court shall rely on the reciprocal provision in the act for such purpose.
Reciprocal provision is an enabling provision for interStates syariah courtsAo decisions enforcement through a legal endorsement of the receiving State.
For example, if a syariah court in the Federal territories wants to execute its warrant of arrest on a suspect who resides in the State of Selangor, the warrant shall be endorsed first by the Selangor syariah court before it could be 79 It is just a formality that has been well respected and adhered so far.
SELECTED
ISSUES
ENFORCEMENT
OFFENCES
Based on current man-power, some of the offences are hard to offences due to For example, a non seizable offence of failure to perform Jumaat prayer.
Public might question that if the officers want to enforce this by arresting people who did not pray, what about the fact that the officers who make the arrest did not themselves pray? In Malaysia, the number of female officers is very limited and no non-Muslim officers at all.
This makes the offence remains as an offence in the Act but not in reality.
The government must have a serious thought about this matter and find a practical solution for its implementation.
2 Investigation and Prosecution of Seizable Offences The Syariah Criminal Procedure (Federal Territorie.
Act 1997 enlists some acts that are categorised as non-seizable offences.
81 The examples of non-seizable offences in the Act are disrespect of Ramadhan,82 failure to pay zakat83 and indecent act in public.
84 For seizable offences, the Religious Enforcement Officer
generally could not make an arrest except with warrant of arrest where time is needed for the In case where the authorities make an operation on seizable offences, persons caught
for the offence will only be detained for a short
THE
SHARIAH
It is undeniable that when it comes to the enforcement of law, particularly in federalStates legal set-up, there will be many issues arose either economically, legally, and Economic issue is on the inability of the State government, in some cases, to infrastructures and salary-scale to the courtsAo This may somehow slow down the process of the court either directly or indirectly.
See section 14 of the Act.
Section 2 of Syariah CriminalOffences (Federal Territorie.
Act 1997 defines Aononseizable offencesAo as offences that are punishable with imprisonment for not more than one year or with fines only where the Religious Enforcement Officer or Police Officer shall not make an arrest without warrant.
See section 15 of the Act.
See section 16 of the Act.
See section 29 of the Act.
For example section 1 of Syariah Criminal Offences (Federal Territories Ac.
1997 and section 1 of Syariah Criminal Procedure (Federal Territorie.
Act 1997 provide that such law shall only be enforceable in the Federal Territories only.
See section 39 of Syariah Criminal Procedure (Federal Territorie.
Act 1997.
INTERNATIONAL CONFERENCE OF ASEAN PERSPECTIVE AND POLICY
to follow a gazetted fatwa is also an offence.
In the case of Pendakwa Syaryie lwn.
Fahyu Hanim Ahmad dll,86 the accused claimed ignorant on the existence of a fatwa of Selangor prohibiting Muslim women from participating in the beauty contest.
In Sulaiman Takrib v Kerajaan Negeri Terengganu,87 the party even questioned the validity of a gazettedfatwaon prohibition of a deviant teaching as a binding while for the purpose of recording their They then be released with an instruction to come to the authoritiesAo office for In many cases, they failed to come to the office and it is not easy for the authority to re-locate them and the cases hardly come to the prosecution.
It is timely for the government to re-look at this classification and categorised all relevant offences as AoseizableAo so that the investigation process could be more effectively take place.
5 Non Muslim in Syariah Courts 3 Limited Sentencing Power Syariah Criminal Offences (Federal Territorie.
Act 199788 and Syariah Criminal Procedure (Federal Territorie.
Act 199789 provide that the laws are only be applicable to Muslim only.
The fact that the syariah courts are put under the 9th Schedule.
State List of the Federal Constitution is a proof that nonMuslims are not subject to the syariah court The Syariah Court (Criminal Jurisdictio.
Act 1965 has confined the syariah court jurisdiction to three years imprisonment, fines of RM5000, whipping of 6 strokes or any combination thereof.
It is an established practice that the first offender, upon conviction, will only be fined not more than a half of the maximum penalty.
For repeated offenders, they always cite health, sole bread winner of the family and responsibility to look after agedparents as mitigating factors in their appeals.
the end, they will end up with light Khalwat is an offence that is committed by two unrelated individuals.
90 It is quite strange for an offence of khalwat between a Muslim and a non-Muslim, only the Muslim partner will be subject to the syariah prosecution and be sentenced upon conviction while the nonMuslim partner is free from the prosecution.
Khalwat, on the hand, is not an offence in any civil law.
The low punishment prompts the accused to plead guilty during the trial and they will have no problem in paying the light fines.
Most of the criminal cases ended up with Aoplead guiltyAo process as the lawyerAos fee, should they claim for trial, will be much higher than the fines that they will receive.
Another interesting example is the offence Aomisuse of halal signageAo.
91This is a syariahrelated offence issue but is committed mostly by non-Muslims where syariah courts have no jurisdiction on them.
It is not wrong for the Aoplead guilty processAo to take place as this is allowed by the However, too many plead guilty case may deprive the courts of the legal arguments and submissions that may enrich the jurisprudence of the Islamic law.
The submission of the lawyers, for example, may contribute to the development of the law and indirectly develop analytical thinking on the part of the judges and Section 44 of Syariah Criminal Prosedure (Federal Territorie.
Act 1997 gives the power to the syariah courts to issue a search warrant to whomever person related to the case, even to non-Muslims.
Section 11 of the Act gives power to the Religious Enforcement Officers a search even on the premises belong to the non- 4 Non-awareness of Public on the Fatwa as a Law See section 34 of Administration of Islamic Law (Federal Territorie.
Act 1993.
Jurnal Syariah 8 .
6 MLJ 354.
FC.
See section 1 of the Act.
See section 1 of the Act.
See section 27 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
See section 42 of Syariah Criminal Offences (Federal Territorie.
Act 1997.
Most people are aware of the offences in the Syariah Criminal Offences (Federal Territorie.
Act 1997 and matrimonial offences in Islamic Family Law (Federal Territorie.
Act However, not many are aware of failure INTERNATIONAL CONFERENCE OF ASEAN PERSPECTIVE AND POLICY State.
97 For an execution of a summon and a warrant of arrest outside jurisdiction of the issuing court, it relies on the reciprocal enforcement between the States.
There is no legal issue but because of technicality, it always delay on the part of the execution.
Muslims.
However, the Act does not specify the implication should the non-Muslims do not adhere to the law.
As the law is presently understood, the syariah court will not a jurisdiction over non-Muslims and section 210 of the Act on contempt of court will not be applicable to them.
The non-Muslims may only be subject to the civil court for Penal Code offences such as obstruction of justice or obstruction of the government servants from discharging their officialduties.
CONCLUSION
It is regret to state that after 61 years of MalaysiaAos independence, the position of the syariah courts in Malaysia is not as adequate and competitive as their civil courts.
There are many efforts from many agencies that have to concentrate on, among other things, the 6 Role of Police The Act empowers the Police Officers to make an arrest,92 search93 and to execute a search warrant94 and a warrant of arrest.
95 In reality, these officers are not syariah court officers and not trained in the Islamic law and Islamic procedural law.
This makes them reluctant to pro-actively lead the investigation.
Currently, they only join operations as a support team for the Religious Enforcement Officers.
increasing the proper criminal jurisdiction of the syariah courts.
providing adequate and exhaustive syariah legal provisions.
addressing the issues of shortage of man-power and infrastructures.
addressing the issues of adequate financial allocation to syariah courts.
upgrading the cooperation of the enforcement agencies.
7 Remand Order96 Article 5 of the Federal Constitution empowers the syariah court judges to issue a remand order.
Unlike Criminal Procedure Code that is applicable to civil courts, there is no specific section about remand order in the Syariah Criminal Procedure (Federal Territorie.
Act 1997.
Even though section 107 of the Act is arguably related to remand order but it is not used by the court because of its Hence, remand order is not in practice in the syariah courts.
Concentration of these issues may contribute to the effectiveness of the syariah courts and will directly instill the confidence of the society in the Islamic legal system in Malaysia.
REFERENCES