The Penal Code will be incorporated in the Terengganu syariah laws to investigate rape cases, said the state's Hisbah and Special Tasks Committee chairman Tun Salleh Abas.

"If a woman claims that she was raped, investigation under the procedures of the Penal Code will be carried out. If the investigation proved that she was truly raped, no action can be taken against her. If there is sufficient evidence under the code that a particular man had committed the rape, then he will be charged," he said.

The Penal Code is a set of laws used to prosecute criminals where custodial punishment is accorded upon conviction.

Section 376 of the code provides a 20-year maximum jail sentence and whippings for those guilty of rape. Under the code, any witnesses to the alleged crime can testify, including non-eye witnesses such as doctors giving medical testimony.

Salleh said that an Islamic government cannot punish or victimise rape victims.

"We are aware of that because it's clearly stated in a hadith (tradition) of the Prophet Muhammad, that women who had sex under compulsion cannot be punished for zina (adultery)," he told malaysiakini .

Salleh who is also Jertih state assemblyman and a former Lord President was responding to the barrage of protests by women organisations against several provisions in the Terengganu Syariah Criminal ( hudud and qisas ) Bill which they claim discriminate women, in particular rape victims.

Women and Family Development Minister Shahrizat Abdul Jalil had said Section 9(2) of the bill was grossly unfair as it states that a woman who could not provide clear or circumstantial evidence to back her rape charges would be guilty of slanderous accusation and liable to be whipped 80 times.

According to Section 9 of the proposed hudud bill, those who claimed to be raped but has no clear evidence to support her contention can be found guilty of qazaf (false and malicious accusation).

In addition, proof of rape should be supported by eye-witnesses consisting of at least four 'fair and mature' men.

The Terengganu state government has since held forums with several women organisations to assure them that their concerns and views would be considered before tabling the bill on July 7-9.

Third arm

When asked how secular law could be incorporated in Islamic law, Salleh said the Penal Code will come under the third arm of Islamic law called takzir (The first and second arms are hudud and qisas respectively).

"Takzir are simply laws which are not found in the Quran. An Islamic government is allowed to use its discretion to enact laws for the betterment of the society and people. So when we implement the law of hudud and qisas , the existing laws like the Penal Code, Customs Act, Anti-Corruption Act will come under takzir ," he said.

He also stressed that the hudud and qisas laws are not replacement for the existing secular law but are additional and strictly applicable to Muslims only.

"If the civil law is more applicable [because it is] based on circumstances, evidence and so on, it would be referred to as takzir . This is permitted under the Islamic laws," Salleh said.