Rape crimes should come under provisions for hirabah , the law governing the bodily harm and assault to a person, as opposed to hudud law as set by PAS, said PRM deputy Youth chief Latheefa Koya.

Latheefa said this in response to the Terengganu Syariah Criminal (hudud and qisas ) Bill passed yesterday at the state assembly, with a few amendments to the original proposal by PAS.

The controversial law, which seeks to implement Islamic criminal law in Terengganu, was easily passed as it received the backing of all 28 PAS representatives in the 32-seat state assembly. The enactment will come into effect pending the Sultan's assent.

Latheefa, a lawyer, argued that the hudud law that governs rape cases does not address the point of rape laws altogether: the protection of women from being attacked, and to allow rape victims to seek justice.

Rape cases are wrongly classified in this law as a crime under zina (sexual act outside of marriage) provisions, she said.

She claimed that this wrong classification came about because Terengganu Mentri Besar and acting PAS president Abdul Hadi Awang had defined rape as " zina (sexual act outside of marriage) by force".

"In fact, rape should come under hirabah provisions, the law dealing with the assault and bodily harm of a person," Latheefa said.

In the Quran, hirabah is defined as the crime of one or more persons who make a show of force for the purpose of taking away property, the attack of another, causing wrongful restraint, the hurting of another, or even putting another in fear of death.

The hirabah provision was traditionally used in reference to armed robbery, but can also be used to criminalise the 'disgrace of chastity', violence and killing.

Rape, which has to do with "sexual assault and the cause of bodily harm, should therefore come under hirabah ", reasoned Latheefa.

Two provisions deleted

Though amendments have been made to the zina provisions in reference to rape cases, the new law still fails to address rape crimes on the basis of protection for women, and justice for victims, she said.

The new law saw two controversial provisions — 80 lashes or death by stoning if found that a person had made a slanderous rape accusation — deleted from the original proposal.

This was due to dissension raised that the two provisions were against human and women's rights by unduly punishing rape victims — in that those who could not provide four Muslim male witnesses to the act, could also be charged for slander.

With the latest amendment, victims unable to provide the required number of witnesses or adequate evidence, would have their case heard under takzir provisions.

Takzir , the third arm of the syariah, are provisions for criminal offences not covered under hudud and qisas , but calls for punishment to be meted according to the judge's own discretion.

Thus, if a victim is found to have made a slanderous rape accusation, a judge will decide on the penalty.

Real issue not addressed

Though takzir provisions seem less controversial than hudud provisions should a victim fail the evidenciary requirements, Latheefa argued that this avoids addressing the real issue at hand, which is the purpose of rape laws.

"The point of rape laws should in the first place provide adequate protection to women and to provide justice to a victim of rape," she argued.

According to her, takzir provisions should not even enter the picture when referring to rape cases.

Since takzir provisions will be used if evidence is inadequate, "will women who are raped get any justice by being able to take action against their rapist?" Latheefa asked.

"Will the rapist get away with the crime (under hudud and takzir )?" she added.

Even now, she said, there is unnecessary emphasis on the burden of proof on the victim, given the strict evidenciary requirements of the hudud.

"I am definitely not happy with (the law) despite the changes," said Latheefa.