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Understanding RUU 355: Q&A with Rozana Isa

Understanding RUU 355: Q&A with Rozana Isa

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1. Let’s start with the basics – what is RUU355?

RUU355 refers to Act 355 of the Syariah Courts (Criminal Jurisdiction) Act 1965 or Akta Mahkamah Syariah (Bidang Kuasa Jenayah) 1965 in Bahasa Malaysia. This is a short legislation, which determines the sentencing powers of Syariah courts in Malaysia. RUU355 or Rang Undang-Undang Akta 355 is a Federal legislation and it is an enabling legislation, which allows State legislatures to increase punitive powers in Islamic Laws (which are also State based).

2. What is Hadi’s Bill?

Hadi’s Bill refers to the recent proposed amendment to the Syariah Courts (Criminal Jurisdiction) Act which was introduced as a Private Member’s Bill by PAS President and Member of Parliament for Marang, Datuk Seri Abdul Hadi Awang, most recently on 6th April 2017.

At the moment, Section 2 of the Syariah Courts (Criminal Jurisdiction) Act 1965 [Act 355] states that the Syariah Courts may only impose a punishment of: imprisonment for a term not exceeding three years, or any fine not exceeding five thousand ringgit, or whipping not exceeding six strokes (also known as the 3-5-6 rule).

The current version of the proposed Bill seeks to amend the 3-5-6 rule to a maximum punishment of 30 years in jail, a maximum fine of RM100,000, and a maximum of 100 strokes of the whip.


3. Is RUU355 a form of Islamic law? 

It is very important that we view RUU355 for what it actually is – a set of proposed law amendments.

 These are man-made laws, defined as fiqh, which is the human interpretation of the Holy text. Fiqh is not a divine set of laws as it is a human interpretation limited by one’s lived reality, experiences and understanding.

For a law to be considered Islamic or syariah, it should be based on principles of justice, welfare and mercy.

It must serve the purpose of delivering those three elements. If a law does not promise to deliver these, then it incorrect to call it syariah.

RUU355’s main focus is on increasing punishments. If we refer to the sunnah of Prophet Muhammad SAW, however, we will learn that the Prophet often chose forgiveness over punishment.

Hadith 52 of hadith Shahih Al-Bukhari 6823, Book 86, narrated by Anas bin Malik, recorded an incident where a man came to the Prophet and said,

“Oh Allah’s Messenger, I have committed a legally punishable sin; please inflict the legal punishment on me.” The Prophet did not ask him what he had done. Then the time for prayer came and the man offered prayer along with the Prophet. When the Prophet finished his prayer, the man again got up and said, “Oh Allah’s Messenger, I have committed a legally punishable sin; please inflict the legal punishment on me.” The Prophet asked, “Haven’t you prayed with us?” The man answered yes and the Prophet replied, “Allah has forgiven your sin.”

 


4. Politicians continuously claim that RUU355 is a law that will only affect Muslims, so non-Muslims should not worry. Is this true? 

The Syariah Courts only have jurisdiction over Muslims under the Federal Constitution. So technically Syariah courts should not impact non-Muslims in Malaysia. However, we have seen many incidences where the decisions of the Syariah courts have negatively impacted the lives of non-Muslims:

2006: The case of the custody battle between R. Subashini and her ex-husband who converted to Islam and also converted their two children without her consent. In the Federal Court, it was unanimously decided that the Syariah Court had no jurisdiction to make custody order in marriage-dissolution involving a Muslim convert and a non-Muslim convert.

The final decision of the Federal court ruled that the conversion of children by one parent is considered valid.

2014: The body snatching case of Teoh Cheng Cheng by the Penang Religious Authority (JAIP). Teoh Cheng Cheng’s body was taken away by the Penang Religious Authority in the middle of a Taoist funeral procession. The reason was that JAIP allegedly had information to confirm that Teoh Cheng Cheng was Muslim and should be buried the Muslim way.

After investigation, the Penang Syariah High Court declared that Teoh was not a Muslim. Unfortunately, the tragic incident of body snatching by JAIP had already scarred the family.

2014: The Selangor Religious Authority (JAIS) raided a Hindu wedding ceremony because of a tip-off that the bride was actually Muslim.

As it turned out, the bride, a practicing Hindu, was unilaterally converted to Islam by her father. This resulted in her wedding day being victimized by JAIS.


5. The slogan for RUU355 is, “syariah diperkasa, rakyat sejahtera.” Is this true? If so, then why should we oppose positive efforts towards improving Syariah courts?  

The slogan is an oversimplification of the issue, and in many ways deceptive. Supporters of RUU355 argue that the present limit on punishments is not effective as a deterrent for social ills in Malaysia. Therefore, they further argue that increasing punishments would elevate the status of syariah courts and help reduce so called syariah crimes – thus creating a peaceful society (rakyat sejahtera).

How will increasing punishments create a peaceful society?

In addition, what evidence have PAS and the government supporters of RUU355 provided in support of their claim that more punishments will result in fewer crimes? Will systemic problems in syariah courts also be addressed in the pursuit of elevating its status?

Claiming that RUU355 will help create a peaceful society is a bold and misleading claim, because the bill does not address systemic problems that presently exist in Syariah courts. Muslim women that SIS work with often complain to us about the multiple fees to file applications, the many trips back and forth to court due to a change in judge and/or court date, the exorbitant cost of syarie lawyers and of ex-husbands getting away with not paying maintenance for months.

The status of syariah courts have a better chance of being elevated by addressing these existing systemic problems, rather than focusing only on the aspect of punishment.


6. Is RUU355 completely unrelated to the implementation of hudud and does it have the potential to open the doors to the implementation of hudud in Malaysia? 

On one hand, RUU355 does not have a direct or clear connection to hudud. However, it enables the implementation of hudud laws, even if only partially.

For example, under the new punishment limit of RM100,000 fine, 30 years jail and 100 lashes, the hudud punishment for zina and drinking alcohol can already be applied. Under Section 22 of the Syariah Criminal Code in Kelantan, the punishment for zina is up to 100 strokes of the cane; while Muslims drinking alcohol may be punished with up to 80 strokes.


7. Will RUU355 really provide justice to the people? 

To discuss this, we first need to discuss what acts are punishable under RUU355 and critically analyse whether these acts are actually crimes and that punishing them under RUU355 is constitutional.

In 1997, three contestants of a beauty pageant in Selangor were arrested by the religious authority (JAIS) because they were Muslim. The three women were arrested in front of the audience, handcuffed and then thrown into lock up. Publicly humiliated and treated like criminals, they were arrested for violating a fatwa which banned Muslim women from participating in beauty pageants.

In 2014 the Negeri Sembilan Religious Authority raided a wedding to arrest 16 transwomen, some of whom were the wedding planners and some who had attended as guests. Not only were the transwomen arrested, their heads were shaved, they were fined RM950 each and then imprisoned for 7 days each. Why? For allegedly ‘cross-dressing,’ which is punishable under the Syariah Criminal Offences Enactment (SCOE).

More recently in February this year, a married couple were traumatized by another moral policing raid by the Federal Territories Islamic Religious Department (JAWI) at the budget hotel room they were staying in. The male religious officers had forcefully entered the hotel room despite being told by the husband that his wife inside was not dressed appropriately, which had resulted in a scuffle that caused the husband’s neck to be injured due to alleged strangulation.

Although the husband had repeatedly told the religious officers that they are husband and wife and showed the officers the photo of their marriage certificate on his hand phone, the officers refused to accept the explanation. Instead, the male officers had directed the wife, in front of her own husband, to put on her clothes in front of the male officers. One of the officers kept on taking pictures and video despite being told of the couple’s marital status.

The couple, who have been married for three years, are now suing JAWI for raiding and arresting them for khalwat or close proximity. They are demanding an apology from JAWI for their traumatic experience that resulted in injuries and their wrongful detention even after showing proof of their marriage.

These three examples highlight three important issues in the implementation of Syariah Criminal Offences Enactments: i) the violation of fundamental rights in enforcing these laws; ii) The complete disregard of standard operating procedures by the enforcers; and, iii) the vague and wide scope of ‘crimes’ under the SCOE.

In addition, the implementation of punishment for ‘syariah’ crimes have been targeted towards women, sexual minorities and people of lower economic status.

How can the selective implementation of laws and the violation of fundamental liberties coupled with the increase in punishments under RUU355 ensure justice for Malaysians?

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