THE amendments to the Syariah Criminal Code II 1993 at the Kelantan Legislative Assembly last month attracted much debate.
The Bill has indeed become a national issue ever since it was first introduced and passed by the Kelantan State Assembly in 1993.
Recently, the syariah-related laws again attracted the attention of all sectors, nationally as well as internationally, following the amendment Bill to the 1993 law which was tabled, debated and subsequently passed by the legislative assembly.
Following the passing of the Bill, the issues raised included the position and the application of syariah or Islamic law, especially Islamic criminal law, in our Malaysian legal philosophy and national legislation. Questions on the implementation of the law were also posed. This encapsulates questions in human recourse, physical infrastructure and facilities for the application, implementation and execution of the law.
Muslims believe that criminal law forms part and parcel of Islamic teaching, whereby adherence to Islamic law, including Islamic criminal law, is one of the distinguishing characteristics of the Muslim faith. Through the centuries Muslims have devoted much scholarly time and effort on its elaboration.
Until today, Islamic law has been a source of law in various countries, such as Saudi Arabia, Pakistan, Iran, Brunei, the United Arab Emirates and Qatar. Although various countries recognise Islamic law as their source of law, this does not mean that the practice of these countries should be the model in the application of the law in our country.
The application of Islamic law, including Islamic criminal law, shall be “customised” to the place and situation. This is compatible with the characteristic of Islamic law, which is universal, contemporary and realistic.
Islamic law undeniably has a place in our Malaysian legal system. The supreme law of the land acknowledges the position of Islamic law, although qualifying that its application is to Muslims only and on matters pertaining to the precepts of Islam. The interpretation to the word “precept” is wide enough to encapsulate all teachings of Islam. In other words, the Malaysian legal philosophy does not deny the position of Islamic law.
Islam, as a religion, is clearly entrenched in the Constitution as the religion of the country. Equally, from the sociological point of view, the religion is well recognised in the social life of Malaysians. Consequently, we may say that Islamic law has a certain position, and the religion has a role to play and has the right to be recognised in the Malaysian legal system.
Due to the fact that we have a written Constitution, we subscribe to the value of constitutional supremacy. The provisions of the Constitution create the national legal philosophy, recognising the Islamic legal system together with another system we call the civil legal system. The situation might differ if the Constitution did not recognise the religion of the country or if our society were a non-religious society.
The Constitution has then created a dual legal system. As a matter of respect to the Constitution as the supreme law, the dual legal system (that has been created by the Constitution) requires all Malaysians to respect the system. In respecting the dual system, it may be useful for all Malaysians to learn and understand the dual system simultaneously – in the spirit of togetherness.
Although Islamic law applies only to Muslims, it also requires understanding and respect of all Malaysians on the basis of moral responsibility, to respect the law as a constitutionally recognised law.
Respecting the dual system is a sign of respect for the supremacy of Constitution. When we talk about respecting the Constitution, all Malaysians are alike; everybody must respect the Constitution, with no exception.
For Muslims, Islamic law should be studied and understood holistically. The acknowledged Islamic law principles and the reality of the day must be fully appreciated.
Limited knowledge will cause confusion. The confusion may subsequently lead to misunderstandings which may implicate an ugly reputation of Islamic law and may breed defamation of the religion of Islam.
On the issue of implementation and execution of syariah-related laws, they have to be in conformity not only with Islamic law, but must be tailored to the nature and reality of the country’s legal and social situation.
They must be in accord with the current legal framework; otherwise Islamic law will be seen as trespassing or disrespecting the legal system. As a religion and also a legalistic way of life, the regular exercise of Islam must also be seen as orderly and respectful of the state system, particularly the Federal Constitution.
The division of powers between the federal and states must be respected, as the constitutional provisions on the subject are very clear and free from ambiguity in the interpretation.
In addition to the constitutional provisions as the basic legal framework, a related matter to be addressed in the enforcement of Islamic criminal law is the adjudication process. In all criminal matters, there is nothing more important than the mode of adjudication.
This is due to the fact that enforcement of criminal law is very close to human rights. Islam introduces a comprehensive concept of respect for human rights, as compared to other systems. Consequently, the enforcement of Islamic criminal law must portray the beauty of the concept. For instance, Islamic principles on presumption of innocence and standard of proof are far more stringent in cases punishable with severe punishment.
The standard of proof must reach the degree of “beyond any shadow of doubt” rather than “beyond any reasonable doubt” as applicable in the civil law system.
The enforcement of the law also requires reformation in the administration of Islamic institutions, especially the enforcement department and also the court. In the first instance, the enforcement department, and the judges’ reputation, must be well maintained.
The victory of law enforcement does not only depend on the substantive law; many other related matters, such as the personnel, from the investigating teams to the judges and the executors of the courts judgments. These personnel must all be well equipped in terms of their ability and credibility. Unavoidably, their reputation must also be improved.
Judicial officers and judges must be well equipped with knowledge of the current complexities. For judges, the most important aspect in their duty is judgment writing.
The most credible judges will be judged through their judgments and their written judgments. Therefore, a judge’s written judgment must be impressive in order for the beauty of substantive and procedural law be seen.
Prof Madya Dr Shamrahayu A. Aziz is Principal Fellow at Ikim’s Centre for the Study of Syariah, Law and Politics. The views expressed here are entirely the writer’s own. The STAR Home News Opinion IKIM Views 7 Aptil 2015