Urging a review, three NGOs say Kelantan Shariah criminal law will further harm already marginalised groups in Malaysia

KUALA LUMPUR, March 22 — Three non-governmental organisations today called on Putrajaya and the state government to pause and review the recently passed Kelantan Syariah Criminal Code Enactment 2019, which they insist are contrary to constitutional guaranteed freedoms in Malaysia.

According to Sisters in Islam (SIS), Legal Dignity, and Justice for Sisters (JFS), the Enactment is an infringement of human rights and causes more damage than good, legally-speaking.

Launching their joint study that analysed the Kelantan Shariah law on the country’s existing legal framework and human rights, the NGOs highlighted that the Enactment empowers the state to impose harsher punishments will only encourage violence, potential abuse of power and discrimination towards marginalised communities.

“This Enactment is problematic, redundant, unnecessary and a waste of resources as it introduces 31 new areas of criminality, most of which fall outside of state jurisdiction and infringe on the rights guaranteed under the Federal Constitution.

“Among the sections that are covered by the new Enactment are exposing aurat in public places, change of gender, anything intoxicating — which overlaps with the Dangerous Drugs Act — disobedience to parents and others,” said JFS founder Thilaga Sulathireh during the launch of its report on the groups in depth analysis of the Enactment.

In Islam, aurat refers to certain parts of the human body that must be covered by clothing. For Muslim men, it is between the navel and the knees. For Muslim women, only her face and palms can be uncovered.

The group said that after analysing the Enactment through human rights and constitutional frameworks, it found several overlaps with the Federal Constitution and other existing Federal Laws such as Penal Code, Criminal Procedure Code (CPC) and the Dangerous Drug Act.

It said that provisions under the new Enactment overlap with existing laws at the federal level and items in the federal list, which infringes the Federal Constitution.

“The Federal Constitution has divided the areas of law that could be legislated by the federal Government and the state government.

“There are provisions under the 2019 Enactment that clearly intrude on existing federal laws, such as the Penal Code, Dangerous Drugs Act, and various Acts related to commercial and banking matters,” it said.

Fundamental liberties guaranteed by the Federal Constitution and international Human Rights laws are challenged by the Enactment, the group said.

These include the right to freedom of religion and belief, the right to life, and the right to live with dignity, among others.

“Further, new sections under the Enactment criminalises the attempt of consensual sexual relations between persons of all genders, as well as transgender and gender diverse persons based on their gender identity. This contravenes the very basis of equality and non-discrimination principles under international human rights law.

“The Enactment also maintains the corporal punishment of caning, and further increased areas for whipping as a permissible punishment. This is in contravention of international human rights law,” it said.

The report by the group analyses the Kelantan Syariah Criminal Code Enactment 2019, which was passed by the Kelantan state legislative assembly on November 1, last year.

The state law has a total of 68 sections, 33 of which are new sections added from the 1985 Enactment, which previously had 35 sections.

The Enactment also provides for harsher penalties, listing the maximum punishment under the Shariah court jurisdiction is a fine of RM5,000, three years of imprisonment and six lashes of the cane.

Malaysia practices a dual-justice system with Islamic matters falling under the purview of each of the separate states, which has sometimes given rise to legal conflicts on which court has jurisdiction.