PAS says rape does not fall under zina provisions, but critics unconvinced
news feature
A Terengganu legislator has chided critics unfamiliar with the state's recently passed Syariah Criminal Offences ( Hudud and Qisas ) enactment for talking as though they understood its application.Wan Abdul Muttalib Embong was responding to criticism that PAS' approach on the zina (extramarital sex) provisions of the hudud seemed to open the door for rape victims to be considered as having committed adultery.
The rules of zina provisions do not touch rape cases as rape has already been dealt with in the Penal Code, said Abdul Muttalib who is also an executive committee member of the Terengganu government.
"Everyone including the prime minister talks about rape (being equated to
zina
) but they don't know the law," he told
malaysiakini
recently.
He urged people who are unclear of the law and its application, to approach PAS directly for an explanation.
Under the bill, zina is "sexual intercourse between a man and a woman who are not married to each other and such intercourse does not come within the meaning of watie syubhah " (sexual intercourse in doubtful circumstances).
Burden of proof
He dismissed claims by women's rights groups and federal politicians that, given the broad definition of zina in the bill, the same rules could also be applied to rape victims.
For one, critics said, since pregnancy is accepted as proof of zina under the bill, rape cases that result in pregnancy can still see victims being prosecuted for zina .
However, according to Abdul Muttalib, the exception to this is if the rape victim can provide circumstantial evidence ( qarinah ) that the act was committed against her will.
In addition, hudud punishment for zina cannot be carried out against a rape victim, but her case can continue to be heard under the third arm of the syariah known as takzir .
Takzir is provisions for criminal offences not covered under hudud and qisas , but calls for punishment to be meted out according to the judge's discretion.
Critics still charge that these amendments are not good enough since a rape victim who becomes pregnant as a result of the act, would still have to show proof of the crime committed against her. This, in effect, shifts the burden of proof from the prosecution to the defence.
'Not a single case'
When contacted, Islamic law professor Mohammad Hashim Kamali said the specific requirements needed to prove zina , as expressed in the Quran, make it very difficult for anyone to accuse another of the offence.
"Since the advent of Islam, there has not been a single case of zina with four witnesses to testify to it," he said.
"The requirements are specific, as all four witnesses must see the act of penetration, and that all four testimonies must be accurate."
Women's rights advocate Zaitun Kasim, too, held that the spirit of the zina provisions makes it virtually impossible to charge anyone with the crime of extramarital sex.
The "extremely high" evidenciary requirements the corroborated testimony of four Muslim males of just character needed to find someone guilty of zina , represents a certain respect for privacy and the protection of individuals from malicious accusations.
Yet because of these requirements, the charge of zina is not an easy one to make since those making the accusation, should they fail to meet the burden of proof, can be charged with qazaf (slanderous accusations), said Zaitun.
She questioned how the Terengganu government intends to use and apply the rule of zina as well as the purpose behind its doggedness to implement a law that would allow it to legislate on private lives.
Pregnancy as proof
Hashim also pointed out the controversial aspect of this bill is allowing pregnancy as proof of zina .
On the other hand, Hashim argued that the Quran clearly says that in order to find someone guilty of zina , one must prove beyond all reasonable doubt, that the crime was committed hence the requirement of four witnesses to the act.
"To say that a pregnant woman has committed zina is merely drawing from circumstantial evidence ( qarinah ) and not conclusive proof of zina ," said the International Islamic University lecturer.
"Pregnancy is circumstantial evidence, and can for example be a result of rape, or other instances of doubtful pregnancy," he said, referring to the example of modern fertility methods where pregnancy does not need to result from sexual intercourse.
Moral police
He also cautioned that in the application of the hudud , care should be taken to differentiate between a crime and a moral violation, and that tolerance of weaknesses in human beings, be taken into consideration.
"With regard to hudud offences and penalties, the basic teaching of Prophet Muhammad is that one should not be too assiduous to bring these private heinous acts into public."
However, he qualified this by saying that society cannot turn a blind eye to a crime once it is reported, because it is the duty of enforcers to make sure that crimes are punished.
Yet, he said one must continue to stress the elements of forgiveness and tolerance in the application of the hudud .
Zaitun said the concept of a moral police is almost unheard of in Islam, referring to a Quranic verse that translates into Malay as " jangan mencari keburukan orang " (do not seek the failure of others). "This goes against the very grain of Islam," she said.
Also commenting on this, deputy PRM Youth leader Latheefa Koya said if enforcement of the law means having officers go from door-to-door checking on people's private behaviour, this act itself is unacceptable and alien in Islamic society.
"You simply cannot go knocking on people's doors to see if they are committing a sin," she said, adding that much remains to be seen on how the 'moral' officers will apply this law.
Strong criticism
Still, Hashim said, it is time both PAS and the federal Barisan Nasional government settled their dispute over both the new Terengganu law and the Kelantan syariah law which was ratified since 1993.
"It is not good for Malaysia that there should be this kind of persistent disagreement," said Hashim. "The issue should not be politicised as it seems to be."
In recent weeks, BN politicians, other opposition politicians and interest groups have strongly criticised PAS' move in tabling the bill, specifically for what they view as a move to politicise religious issues.
Interestingly enough, though BN, and Umno politicians in particular, have been vocal in their opposition of the bill, none of the Umno state assembly members voted against the bill. Three abstained from voting while the fourth representative was not in the room during vote count.
The bill, passed by the Terengganu state assembly last Monday, awaits royal assent before it can be gazetted to take effect. It criminalises theft ( sariqah ), robbery ( hirabah ), extramarital sex ( zina ), liquor consumption ( syurb ), and apostasy ( irtidad , riddah ).
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