Syariah Criminal Offence (Hudud and

Qisas)

Terengganu Enactment 1423H/2002M.

Its Impact on People of Terengganu and Its Applicability With Special Reference To

Malaysian Federal Constitution.

Historical Background of Terengganu on Islamic Law

� In 1887, Batu Bersurat was found in PadangTara, near Sungai Tara, at Kampung Buloh, Kuala Berang, Hulu Terengganu

� Explanation, about Islamic Law as the Law of the Land and Islam as religion of State of Terengganu.

� Eg. Undang-Undang Isytihar Terengganu1881-1918M.

Introduction

� The Syariah Criminal Offence (Hudud andQisas) Terengganu Enactment 1423H/2002M was passed by theTerengganu State Legislative Assembly on the 8th July 2002 with 4 abstentions and no votes against.

Part 1 (Sections 1-4) – Preliminary.

� Deals with the formal requirements of legislation, the basic interpretation of the terms in The Enactment and sets the offences into three (3) categories of sanctions namely Hudud, Qisas and Takzir.Hudud is specifically confined to six (6) offences of syurb, drinking intoxicants;qazaf, imputing illicit sexual intercourse,zina, illicit sexual intercourse; sariqah, theft; hirabah, robbery and irtidad, apostasy.

Part 2 (Sections 5-6) – Syurb.

� Defines the offence of drinking intoxicants, syurb, provides for punishment of between forty (40) to eighty (80) lashes, and sets the several conditions for the imposition of thisHudud punishment..

Part 2 (Sections 5-6) – Syurb.

� Defines the offence of drinking intoxicants, syurb, provides for punishment of between forty (40) to eighty (80) lashes, and sets the several conditions for the imposition of this Hudud punishment. .

Part 3 (Sections 7-11) – Qazaf.

�Slander imputing illicit sexual intercourse without the testimony of four (4) male witnesses, comprises the offence of qazaf, punishable with eighty (80) lashes.

Cont…

�The complaint of rape by a female without the testimony of four (4) male witnesses or other evidence acceptable under thesyariah, is deemed an offence of qazaf by her under Subsection 9(1). This clause as originally drafted was the cause of much concern and attracted vehement protests.

Cont…

Subsection 9(2), now provides where the offence of rape cannot be proved by either the testimony of four (4) male witnesses or other evidence acceptable under thesyariah, but there exists sufficient evidence to prove that sexual intercourse was committed on the complainant against her will or by force, the offender shall be punishable under the provisions of takzirand the complainant deemed not to have committed qazaf.

Cont…

• Al-li’an, an oath by the husband alleging adultery against his wife or denying the paternity of a child carried by her, when answered by an oath denying the same by the wife effects an immediate dissolution of their marriage, both are deemed not punishable, in the case of the husband for qazaf and in the case of the wife forzina.

Part 4 (Sections 12-18) – Zina.

• Zina, sexual intercourse between a man and a woman who are not married to each other is a hudud offence punishable in the instance of mohsan, a married person who has experienced sexual intercourse, with death by stoning, and in the case ofghairu mohsan, an unmarried person, with one hundred (100) lashes and imprisonment of one (1) year.

Cont…

There are specific defences available, amongst others, watie syubhah, mistaken believe that the woman is his wife in fact or under the syariah, where the woman was raped, drunk, drugged or otherwise influenced by black magic.

Part 4 (Sections 12-18) – Zina.

� Deals with the formal requirements of legislation, the basic interpretation of the terms in The Enactment and sets the offences into three (3) categories of sanctions namely Hudud, Qisas and Takzir.Hudud is specifically confined to six (6) offences of syurb, drinking intoxicants;qazaf, imputing illicit sexual intercourse,zina, illicit sexual intercourse; sariqah, theft; hirabah, robbery and irtidad, apostasy.

Cont…☺ Liwat, sodomy between a male and

another male or female is a hududoffence punishable as in the offence ofzina and requires the same standard of proof.

☺ Zina mahram, incest is defined as sexual intercourse between a man and a woman who are prohibited to marry under thesyariah, if proved as a hudud offence is punishable as in the offence of zina, where the proof is by other irrebutableevidence, it is punishable as a takziroffence.

Part 5 (Sections 19-21) – Sariqah.

� Sariqah, the hudud offence of theft, is punishable for the first offence with amputation of the right hand, for the second offence with amputation of the left foot, and thereafter for imprisonment for such term to lead to repentance.

� There are some twenty (20) over exceptions enumerated to relieve the offender from the hudud punishment.

Part 6 (Sections 22-24) – Hirabah.

�Hirabah, the offence of robbery, punishable with different hudud according to the circumstances and nature of the offence, the perpetrator, and the victim, punishment ranges from death andcrucifiction, death, amputation to imprisonment.

Cont…

�There are exceptions to execution of the hudud punishment notably, the surrender of the offender or the declaration of repentance and abandonment of hirabah by the offender and surrender of the property taken, before the process of law begins.

Part 7 (Sections 25-26) – Irtidad orRiddah.

� Irtidad or Riddah, the offence of apostasy, is defined “any act done or word uttered by a Muslim who is mukallaf, being act or word which according to theHukum Syarak, affects or which is against the ‘aqidah (belief) in Islamic religion:”

Cont…

� Before punishment is decreed there must be a period of at least three (3) days for the offender to repent, the punishment being death and forfeiture of all his property.

�Where the offender repents his property shall be returned to him and he may be sentenced to five (5) years imprisonment.

Part 8 (Sections 27-41) – Qisas.

� The offence of qisas consists of homicide and causing bodily injuries and is subject to qisas punishment or diyat or irsy, compensation respectively for homicide or bodily injuries and takzir of imprisonment.

� Homicide is divided into three (3) categories,

Cont…

� Qatlul-al-‘amd, voluntarily causing death punishable by qisas of death, or remission by the deceased’s next of kin on payment of diyat, whereafter the takzirpunishment of life imprisonment may be imposed;

� Qatlul-syibhi-al-‘amd, quasi-voluntary killing shall be subject to payment ofdiyat and the takzir punishment of imprisonment not exceeding fourteen (14) years;

Cont…� Qatlul-al-khata’, involuntarily causing

death shall be subject to payment ofdiyat and the takzir punishment of imprisonment not exceeding ten (10) years.

� The offence of causing bodily injuries attracts qisas punishment, of retaliatory similar bodily injury as inflicted on the victim, when the conditions as required byHukum Syarak are met, otherwise the offender has to pay irsy to the victim and be subject to takzir punishment of imprisonment.

Cont…�There are five (5) categories,

☺ itlaf-al-udhw, causing dismemberment of any organ of the body or injury to a part of or organ of the body;

☺ itlaf-solahiyyatu-al-udhw, causing destruction or permanent impediment of the function, or use of an organ of the body, or permanently disfiguring such organ;

Cont…

☺ syajjah, causing injury on the head or face which injury does not amount to either itlaf-al-udhw or itlaf-solahiyyatu-al-udhw;

☺ jurh, causing injury on any part of the body save the head and the face which leaves a mark or scar whether temporary or permanent; and

☺ all other bodily injuries.

Cont…☺ The amount of irsy payable and the terms

of imprisonment are determined with reference to Hukum Syarak and shall vary according to the circumstances, nature and gravity of the injuries. Thetakzir punishment for itlaf-al-udhw anditlaf-solahiyyatu-al-udhw, is imprisonment of ten (10) years and the other punishments are set down in detail in Schedules II, III, & IV.

Part 9 (Sections 42-50) –Evidence.

☺ The provisions of the Evidence Enactment of the Syariah Court (Terengganu) 1422H/2001M [Tr Enact 6/01] shall apply and special provisions are prescribed for hudud offences, generally two (2) witnesses except forzina where four (4) witnesses are required.

Cont…

� Evidence shall consist of Iqrar or confession, witness testimony andQarinah or circumstantial evidence.

� Iqrar must be voluntary and may be retracted.

� Witness is defined as adult, male,mukallaf, just, Muslim.

� The quality of testimony shall be of absolute certainty and free of ambiguity.

Cont…�Testimony of zina may be retracted, but makes the witness liable to qazaf.

�Qarinah is insufficient to prove a hududoffence, except to establish the defence of rape, pregnancy or the birth of a child to an unmarried woman, and the condition of a person accused of Syurb, may raise a presumption of a hudud offence.

�Notwithstanding the evidence being insufficient to prove a hudud offence, the same may be proof sufficient for an offence punishable under takzir.

Part 10 (Sections 51-58) – How Punishment Is Carried Out.

� Hudud punishment cannot be changed or even suspended, but every hududpunishment, death sentence under qisasor takzir must be confirmed by the Special

Part 11 (Sections 59-65) –General Provisions.

�Any Muslim who commits an offence under The Enactment in the state of Terengganuis liable, and a non-Muslim may elect to be subject to The Enactment.

�Any attempt, abetment, conspiracy or assistance or common intention in any offence under The Enactment shall be an offence of takzir and may be liable to imprisonment not exceeding ten (10) years.

Cont…

�Sariqah by several offenders may be deemed to be committed alone provided the property when divided equally amongst them is equal or exceeds the nisab.

�An offender who is tried for an offence under The Enactment shall not be liable under the Penal Code.

Cont…

�The Hukum Syarak and precedents thereof will govern the interpretation of the Enactment.

�Section 65A, empowers the DYMM Sultan to make rules and regulations consistent to the Hukum Syarak, as deemed expedient for the purposes of the Enactment by publication in the Gazette.

Part 12 (Sections 66-67) –Court.

� Jurisdiction to try offences under The Enactment is exclusive to the SpecialSyariah Trial Court, comprising three (3) Judges, two (2) Syariah Court Judges and one (1) serving or retired Judge of the High Court of Malaya or any person qualified to be a Judge of the High Court of Malaya appointed by DYMM the Sultan of Terengganu on the advise of theMenteri Besar, decisions may be by simple majority.

Cont…

� Appeal shall be to the Special SyariahCourt of Appeal, comprising five (5) Judges, decisions may be by simple majority and shall be final unless otherwise provided either in the State or Federal Constitution.

The Schedules:

Schedule I - Subsection 2 (2)Provides the Arabic script for certain words and

expressions.

Schedule II - Subsection 41 (a)The amount of irsy payable for causing itlaf-al-udhw

anditlaf-al-solahiyyatu al udhw

Schedule III - Subsection 41 (b)The amount of irsy and the term of imprisonment

for causing syajjah(injuries to the head or face).

Cont…Schedule IV - Subsection 41 (c)

The amount of irsy and the term of imprisonmentfor causing jurh (injuries to parts of the body

other than the head or face which leave marks of the wounds).

Schedule V - Section 56

The Whipping Rules.

� All Muslim who are in the State ofTerengganu, and mukallaf, will be subject to the Enactment and the offences provided for therein, whether the offences were committed in their personal capacity or in the course of their employment.

THE IMPLICATIONS OF THE ENACTMENT TO THE PEOPLE OF

TERENGGANU INDIVIDUAL

Cont…

� The two (2) other relevant matters under this paragraph D (iii) are the aspect of territorial jurisdiction and the liability ofmuslim. The Enactment applies only to persons who are in the State ofTerengganu, hence we surmise the Enactment may not apply to activities which are conducted offshore and to personnel who are offshore.

THE EFFECT OF THE ENACTMENT ON BODY CORPORATE

� As a corporate entity, there is no legal basis to charge company or body corporate under the Enactment. Consequently, in our view, there can be no issue of body corporate , as a corporate entity, being convicted or subjected to the punishments under the Enactment.

THE ROYALTY PAYABLE TO THE STATE OF TERENGGANU VIS A VIS

SARIQAH� We have contended earlier that body corporate, as an entity, cannot be charged under the Enactment based on the following grounds

� PETRONAS is not Muslim (Sub-section 59 (1) of the Enactment);

� PETRONAS is not mukallaf (Sub-section 21 (c) of the Enactment);

Constitutional Validity of the Enactment

� Article 3 (1) states “Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation”.

� Article 73 of the Federal Constitution, “(a) Parliament may make laws for the whole or any part of the Federation…..,” and Article 74, specifically defines the ambit as “(1) Without prejudice to any power to make laws conferred on it by any other Article, Parliament may make laws with respect to any of the matters enumerated in the Federal List.

Cont…

� Article 75, provides “If any State law is inconsistent with a federal law, the federal law shall prevail and the State law shall, to the extent of the inconsistency, be void.”

� The Parliament has passed the SyariahCourts (Criminal Jurisdiction) Act 1965, revised as Act 355, which provides theSyariah Court with jurisdiction to impose sentences of up to 3 years imprisonment, fine of RM5,000.00, whipping up to 6 strokes or a combination of the above 3 for all Syariah offences.

Cont….

� Article 11 : Freedom of Religion

� Article 121 (1A)- exclusive jurisdiction of

Syariah Court.

� Schedule 9 List II State List:

� Article 76A- State power to enact Laws.

Cont…

� Article 130 of the Federal Constitution:-the advisory opinion of the Federal Court may be sought by the Yang di-Pertuan Agong who may refer to the Federal Court for its opinion.

CONCLUSION

There is potential exposure to individual Muslim.

Body corporate are not subject to the Enactment.

The validity of the Enactment and punishmentsthereunder may be challenged as being void under the Federal Constitution,