COMMENTARY | There have been various reactions from the government so far the strokes of two women under a Terengganu law, after they pleaded guilty to try to have sex in a car.
Prime Minister Dr Mahathir Mohamad was concerned that the caning beats one bad impression of Islam and did not reflect the quality of justice of religion. He said that a lighter sentence could have been considered and also gave advice to the two women.
Minister in the department of prime minister Mujahid Yusof Rawa stated that it could or could not be present at the strokes of a syarja offender reconsidered. The two women reportedly were deposed for one hundred witnesses.
These reactions tended to focus on the nature of the sentence and the way it was carried out. But was the caning of the two women even allowed under our federal constitution?
federal list, state list
Our constitution provides a detailed overview of what falls under federal or national jurisdiction. An illuminating article by constitutional expert Shad Saleem Faruqi, written in 2005, describes the constitutional limits of the powers of states to punish crimes against the rules of Islam.
Shad states: "Contrary to what is believed, not everything that has to do with Islam is in the hands of state assemblies." The constitutional list of the constitution explicitly states the matters on which state assemblies can draw up legislation.
The first section deals with matters that relate to Islam. It notes that states can legalize violations by persons who profess the religion of Islam against the rules of Islam. However, these violations are limited to areas that are not included in the federal list or that are covered by federal law.
The constitution places public order, "civil and criminal law and procedure and the administration of justice" under the federal list. In addition, Sections 377A to 377D of the Criminal Code deal with committing carnal intercourse, sexual connection per object and wrongdoing on decency.
So the question is whether the statement by the state of Terengganu that criminalises sexual relations between women is even constitutional, since this area falls under the federal and not the state list.
Jurisdiction and procedure
The powers of the Syariah court are also subject to federal control. Paragraph one of the state lists says that the Syariah Court will "have no jurisdiction with respect to violations except as permitted by federal law."
It was never the constitutional plan in 1957 to give the court of Syria the authority to create and punish crimes against Islam. Their authority must be granted by federal law.
There is no federal law that describes the crime of homosexual relationships that the Syariah Court could try. The only relevant law, the Syariah Courts (Criminal Jurisdiction) Act 1965, specifies only the penalties that can be imposed by the courts, but not the offenses themselves.
The court of Syariah was unquestionably unauthorized to thwart the caning punishment for the two women.
There were also procedural violations. The Syariah Courts Act does not contain procedures for imposing penalties. Given the lack of a federal law on state criminal justice, the relevant federal law must apply, especially because criminal law and procedure and the administration of justice are federal matters.
The relevant federal laws are the prison law 1955 and the prison regulations 2000. The regulations contain detailed procedures for executing corporal punishment, including that it must be done in prisons. In the Terengganu case, the two women were never imprisoned. The caning was done in court by prison guards, for which no legal provision exists.
All laws, federal or state, are also subject to the fundamental freedoms in articles 5 to 13 of the federal constitution, which Shad calls "gilded provisions". If laws go against these guaranteed fundamental freedoms, then these laws are unconstitutional and they can not exist.
All laws must comply with Article 8, which guarantees the right to equality. The syariss laws as they are now, however, subject Muslim women to a different human rights norm than non-Muslim women.
Muslim women can be tolerated for same-sex relationships and other offenses established by the state, such as alcohol abuse or adultery. Corporal punishment against women is, however, prohibited under Article 289 of the Code of Criminal Procedure.
State provisions that prescribe cannabis for Muslim women are not only contradictory to the code of criminal procedure, but are also discriminatory. Permissible exemptions from the equal treatment rule are described in Article 8 (5) of the Constitution, but none of the exemptions apply in this case.
The fact that same-sex relationships are criminalized is also discriminatory and violates the rights to equality and freedom of expression. The criminalization of consensual relationships between people of the same sex promotes discrimination and violence against lesbian, gay, bisexual and transgender people.
The Supreme Court in India has recently recognized the harmful and discriminatory effects of such laws, and has ruled that a law that & # 39; carnal community & # 39; punishable was unconstitutional and also irrational, indefensible and clearly arbitrary.
Accession to the Convention against Torture
The caning is a clear violation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), regardless of whether it is carried out in civilian or syariah. Foreign Minister Saifuddin Abdullah stated in July that the government strove to sign CAT and five other international treaties, as promised in Pakatan Harapan manifesto.
In a civilized society there can be absolutely no objection to signing an international treaty that promises not to commit torture. Malaysia must accede to this treaty without delay. We are one of the few countries in the world that still have to do this.
In the meantime, the government should act to rationalize all laws to comply with CAT. This includes the removal of all laws that make corporal punishment possible.
The Syariah Courts (Criminal Jurisdiction) Act 1965 was amended by the Parliament in 1984 to add strokes as a possible punishment for syria-related offenses. Parliament can therefore amend the law again to delete this provision.
Have no sympathy, trade
It is commendable that the new government has expressed its reservations about the caning. But it would be better if our leaders also investigated steps that it can take to remove corporal punishment from our laws.
It takes courage to cope with what may be & # 39; sensitive & # 39; subjects. But certainly nobody can object to a conversation about bringing all laws into line with our federal constitution.
If it is not done now, it simply perpetuates the conviction that states can legislate for any Islamic offense, without taking sufficient account of constitutional boundaries.
This is not about how "light" was the caning. It is about not humbling a person. Ultimately, it is about respect and human dignity that everyone is entitled to.
Note: We want to thank Shad Saleem Faruqi for his advice and contribution to the constitutional aspects of this article.
AMBIGA SREENEVASAN is an international committee of lawyer-commissioner and former chairman of the bar council. DING JO-ANN is a writer and a lawyer.
The opinions expressed here are those of the authors / contributors and do not necessarily represent the opinion of Malaysiakini.