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Liwat is not Sodomy Per Se

[Article published in Harakah (Malaysia) February 8, 1999]

The Kuala Lumpur High Court decision in Sukma Darmawan Sasmitaat Madja v. Ketua Pengarah Penjara Malaysia & Another [1998] 4 CLJ 538 came as a surprise to many as it seems to fly in the face of certain established Federal Court and other High Court decisions. The appellant's argument that only a Syariah court can have jurisdiction over sodomy charges levelled against a Muslim was rejected.

Ruling against the appellant's habeas corpus application, Datuk Abdul Wahab Patail J. held that while he accepted that sodomy is an offence under s. 25 of the Syariah Criminal Offences (Federal Territories) Act, 1997 (Act 559) and is outside the jurisdiction of the Civil courts, he also accepted the argument forwarded by Senior Deputy Public Prosecutor Datuk Ahmad Maarop that, under s. 377D of the Penal Code, the act of gross indecency committed by the accused in allowing himself to be sodomised was a civil offence.

This can arguably be said to be an original interpretation of the amendments made to the Federal Constitution under Art. 121(1A), a provision meant to settle the jurisdictional conflict between the Syariah and Civil courts whereby it is stated that "courts referred to in Clause (1) [meaning Civil courts] shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts."

After all, it can even be said that the passing of Art. 121(1A) was in tandem with efforts by the government towards enhancing the status of the Syariah courts. For, prior to such an amendment to the Federal Constitution by Parliament, in 1984 amendments to the Syariah Court Act (Criminal Jurisdiction), 1965 was made in order to allow Syariah courts to hear criminal cases involving sentencing of up to three years imprisonment, a fine of up to $5000/- and caning of up to six time, or a combination of these.

And considering that there has been so much conflict of jurisdiction in the past between the Syariah and Civil courts that resulted mostly in the subordination of the jurisdiction of the Syariah courts to that of the Civil courts, amendments to the Federal Constitution by virtue of Art. 121(1A) was only the logical next-step.

Such a reading of the law was clearly existent in a decision as recent as the Kuala Lumpur High Court case of Md. Hakim Lee v. Majlis Agama Islam Wilayah Persekutuan, Kuala Lumpur [1997] 4 CLJ Supp 419; [1998] 1 MLJ 681 whereby the plaintiff alleged that he had established himself as an apostate through a "deed poll". As per Datuk Abdul Kadir Sulaiman J, the High Court had even gone to the extent of determining, on Nov. 5, 1997, that despite the absence of a specific state legal provision on the matter of apostasy, "the jurisdiction of the Syariah court is much wider than those expressly conferred upon it by the respective State Legislature."

Simply put, the learned judge may be said to have been abiding merely by the spirit of the amendment to Art. 121 (i.e. Art. 121(1A)) of the Federal Constitution as well as other relevant constitutional provisions to the extent that just because state laws do not confer specific jurisdiction to the Syariah court to hear issues brought by the plaintiff in a case and therefore seem inadequate, it does not mean that such issues are to be adjudicated automatically by a Civil court.

The learned judge's decision was very much in line with the case of Mohamed Habibullah v. Faridah Datuk Talib [1992] 2 MLJ 793, whereby it was held that "in determining whether a Muslim has renounced Islam, the only forum qualified to answer the question is the Syariah court." (As per Tan Sri Gunn Chit Tuan J. and as concurred to by Tan Sri Mohamed Azmi J.)

This has also been in accordance with the judgement given by Tan Sri Mohamed Yusoff J. in the earlier case of Dalip Kaur v. Bukit Mertajam District Police Officer [1992] 1 MLJ 1 as well as of the later decision given by Wan Adnan J. in the case of Soon Seng v. Pertubuhan Kebajikan Islam Malaysia (Perkim) Kedah [1994] 1 MLJ 690.

Hence there exists a strong body of case law in support of the plaintiff in the Sukma Darmawan case which points to the fact that not even inadequacy of law is reason enough for jurisdiction to arise in Civil courts so long as a Syariah court has an "inherent jurisdiction" accorded to it by the particular laws enacted by a state legislature and, as per Art. 74 of the Federal Constitution, under the broad ambit of the 9th Schedule of the Constitution.

What is more, the Syariah Criminal Offences (Federal Territories) Act, 1997 (Act 559) states in no uncertain terms under s. 25 that sodomy or liwat exists as a Syariah offence, in that "Any male person who commits liwat shall be guilty of an offence and shall on conviction be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to whipping not exceeding six strokes or to any combination thereof."

When coupled with Art. 121(1A) of the Federal Constitution, one would have thought that the appellant in the Sukma Darmawan case had a solid basis for his habeas corpus application. Yet Datuk Abdul Wahab Patail J. held that Civil courts still had legitimate jurisdiction.

"It has been said the High Court in Md Hakim Lee v. Majlis Agama Islam Wilayah Persekutuan, Kuala Lumpur [1997] 4 CLJ Supp 419; [1998] 1 MLJ 681 adopted a different approach, taking the view that so long as it is a matter that is in the State List as being within the purview of the Syariah Court, then that matter is not within the jurisdiction of the civil courts. In that case it was held that whether a person is Muslim or not is a matter for the Syariah court to determine.

"If that is a correct interpretation of Md. Hakim Lee v. Majlis Agama Islam Wilayah Persekutuan, Kuala Lumpur, and that interpretation is applied to offences, it could logically suggest that a whole range of offences otherwise applicable to all persons may not be chargeable against Muslims in our criminal courts even if no corresponding offence has been enacted into law by the relevant legislative body authorised to do so under Item 1 [this being Item 1, List 2 - States List Of The Ninth Schedule]" (see [1998] 4 CLJ 538 at 549).

The learned judge then goes on to distinguish the case on the grounds that this case "dealt with a different set of circumstances. It did not deal with, as in the case before this court, offences as such, which is a specific power given in the Federal List to Parliament" (at 550).

Furthermore, although the State List gives power to the State in matters set out therein to make law, the learned judge held that the Syariah court would have jurisdiction over such offences only to the extent jurisdiction is conferred upon it by federal law. This is because one of the powers given to the State is with respect to the "creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List." (Ibid.)

And following Mohamad Habibullah bin Mahmood v. Faridah bte Dato Talib [1992] 5 Kanun 79, the court must firstly see whether Parliament has in fact conferred jurisdiction upon the Syariah Court, and not whether the Parliament has power to enact the law conferring jurisdiction on the Syariah Court.

What this means is that a Syariah court is not necessarily a court of inherent jurisdiction. "It is created by the power in Item 1, and it relies on federal law for its jurisdiction over offences: Nor Kursiah bte Baharuddin v. Shahril bin Lamin & Anor [1997] 1 CLJ Supp 599; [1997] 1 MLJ 537." (Ibid)

All this would seem rather academic since the offence of liwat is one over which the Syariah court has been conferred jurisdiction by federal law and art. 121(1A) of the Federal Constitution should have settled the issue concerning jurisdictional conflict between the Civil and Syariah courts.

Yet, despite the seemingly unambiguous wordings of both s. 25 of Act 559 and art. 121(1A), the learned judge has found cause to distinguish between the offence of liwat, as found under the Syariah Criminal Offences (Federal Territories) Act, 1997 and sodomy, as per s. 377A or s. 377D of the Penal Code. That is to say, the effect of art. 121(1A) "is to confer to the Syariah Court exclusive jurisdiction over the offence of liwat, not the act of sodomy per se." (at 553)

"While s. 377D of the Code created the offence of gross indecency, s. 25 of Act 559 created the offence of sexual relations between male persons. These are two entirely different offences. While s. 25 confines itself to sexual relations between two male persons, the offence under s. 377D covers a wider range of acts of gross indecency." (at 554)

He reasons that "the common denominator of all these offences, and the offence of liwat is that they are all grossly indecent acts. It is clear also there is no corresponding offence of gross indecency in Act 559."

This seems to be a narrow reading of liwat. At least on the face of it, s. 25 of the Syariah Criminal Offences Act does not specifically define liwat as an offence that constitutes an act of gross indecency other than those found in the Penal Code.

Even so, the learned judge held that "while jurisdiction has been conferred by federal law to the Syariah Court over the offence of liwat created under s. 25 of Act 559, no such jurisdiction has been conferred upon the Syariah Courts over the offences under the Penal Code, and specifically, ss. 377A or 377D thereof, to the Syariah Courts." (Ibid)

In other words, the learned judge may be taken to have held that liwat cannot constitute an act or acts of gross indecency as found under the Penal Code, even though the Syariah Criminal Offences Act does not seem to pose any such limitations on the definition of liwat.

In fact, there is no indication anywhere in Act 559 that liwat does not encompass gross indecency of the sort that falls under the relevant provisions of the Penal Code, particularly s. 377D.

Indeed, the learned judge stated, "Of the grossly indecent acts Parliament saw fit to legislate against, gross indecency in s. 377D is the widest in meaning and the least serious offence, attracting imprisonment only of up to two years. " (at 553)

Yet, if seriousness is to be judged by the maximum allowable imprisonment sentence, liwat should be considered as grievous if not more in comparison to that which constitutes gross indecency under s. 377D of the Penal Code. This is because the maximum, and not minimum, allowable imprisonment sentence for liwat, as per s. 25 of Act 559, is three years.

Furthermore, what with the substantive difference between liwat and gross indecency being so central to the learned judge's findings, one would have thought that a more in-depth analysis of the definition of liwat as per the Syariah Criminal Offences Act which takes into consideration juristic sources of Islamic criminal law would be in order. Yet, the learned judge merely referred to liwat in passing "as sexual relations between male persons" (at 552, 553 & 554), as used under s. 2 of Act 559, without more.

Thus, unless the Kuala Lumpur High Court decision on the Sukma Darmawan case pertaining to the relevance of Art. 121(1A) of the Federal Constitution is overturned on appeal or is distinguished or even ignored by a later High Court decision, it would take another act of Parliament or even amendment to the Federal Constitution to further clarify Parliament's intent on the matter.

However, an act of Parliament and perhaps more so an amendment to the Federal Constitution would take time and would be very much influenced by political will or the lack thereof.

Ahmad Faiz bin Abdul Rahman

8 February 1999.

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[Currently, he is the Assistant Director of the International Movement for a Just World (JUST). He was also a Researcher for the Institute of Islamic Understanding, Malaysia (IKIM).]

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