COMMENT Isma president Abdullah Zaik Abd Rahman seems to be too happy to jump on the traumatic robbery of Selangor speaker Hannah Yeoh’s family to justify the implementation of Syariah criminal law.
In fact, as most opponents of Syariah criminal law like to condemn the hudud punishments as harsh and inhumane, most proponents defend it on the ground that harsh punishments can deter crimes, and the interests of crime victims should outweigh the human rights of criminals.
Unsurprisingly, Abdullah Zaik ( left ) claimed that “such crimes recur because the robbers are not afraid of the current laws” and went on to ask Yeoh if she would continue to defend the human rights of robbers or “want the robbers to be given stiff punishment?”
A question however seems to have never been raised: does Syariah criminal law always deliver heavier punishments to deter crimes?
Here we must differentiate between two things: maximum punishment and expected punishments.
Laws normally provide a range of punishments for the same crime by different outcomes, different circumstances, or, as in Syariah criminal law, different degree of reliability of evidences.
Expected punishments then refer to the actual punishments one is likely to get after considering the various factors in conviction and even enforcement.
For example, rapists in Malaysia face a maximum punishment of 20 years imprisonment and whipping. However, if a rapist knows for sure the victim will never make a police report, or there are not sufficient evidences to convict him, the expected punishment will be zero.
Hannah Yeoh case study
How likely might Yeoh’s robbers face hudud punishments?
Assuming Selangor has exactly the same Syariah law as the Kelantan’s Syariah Criminal Code II (1993) 2015, then a robber faces five possible punishments:
a. Hudud - Death and crucifixion for robbing and killing [sub section 10(a)];
b. Hudud - Death for killing in robbery but not taking any property [sub section 10(b)];
c. Hudud - Amputation of right arm and left leg and compensation of blood money for harming victims [sub section 10(c)];
d. Hudud - Amputation of right arm and left leg for robbing properties of value more than 4.45g of gold at current price [sub section 10©]; and
e. Ta’zir - imprisonment up to five years for all other cases. [sub section 10(c)].
Hudud punishments, which are stated in the Quran, cannot be commuted to or replaced with other punishments [Section 41]. Ta’zir on the other hand are discretionary punishments decided by the court, purely human intelligence at work.
Amputation however may not be carried out if the criminal (i) leaves the trade of crime, repent before a judge or a Syariah prosecutor and return the seized property before the legal progress commences and the victims have clear knowledge of the crime; (ii) turns himself in before the legal process starts.
It is therefore not as harsh as many imagine.
Facts of case
Now, look at the case of robbery victimising the Yeoh family. Here are the facts:
a. There were five robbers masked and armed with parangs
b. There were six victims, all non Muslims two males were tied up but no one was harmed
c. The estimated loss was RM8,000
So, if Selangor has the Syariah criminal law as in Kelantan, would the five robbers face amputation?
With the help of the flow chart (prepared by me with no qualification to practice in either the Common Law court or the Syariah court, standing corrected for any factual or interpretational errors), we may go through this with a few questions.
First, are the robbers Muslim? They were masked and they did not reveal their religious status before, during or after the robbery. Abdullah Zaik seems to be certain of this fact.
Perhaps he can
share information privy to him with the police to assist investigation.
If they are not Muslims, the case will go straight to the Common Law court and be tried under the Penal Code.
Second, did they rob more than the worth of 4.45g of gold per person? Dividing RM8,000 by five persons, each robbed an average of RM1,600.
Now, the robbery took place on March 29 (Sunday) and the gold price (based on the average of
buying and selling price at Maybank2u.com) was around RM140, so 4.45g of gold would be worth RM623 and the robbers are indeed liable to amputation.
Third, were there at least two just (adil) male Muslims who have reached puberty (aqil baligh) to give syahadah testimony (swearing to Allah)?
The answer is no. All the six victims are non Muslims. The hudud punishment Abdullah Zaik desires to deter crimes cannot be imposed.
Even if all circumstantial evidences are enough to prove beyond a doubt, the hudud punishment cannot be imposed simply because of the lack of Muslim male witnesses. So, the court will have to deliver a ta’zir punishment, which is jail term up to five years. That is it.
Case under the Penal Code
So, what happens if now we know the robbers were non Muslims and the case will be tried under the Penal Code?
The maximum punishments under the Penal Code are less harsh. For example, whether or not properties are robbed, murder in the course of robbery will only face death, no crucifixion after
death. [Section 302] And if it is culpable homicide not amounting to murder, one may face
imprisonment up to 30 years and fine. [Section 304]
For causing bodily injury, one will only face the maximum punishment of a 20 year jail term and fine or whipping [Section 394], not amputation as in the Syariah law.
However, when we move down on the scale of severity, the Penal Code is actually harsher than the Syariah Criminal Code. Beyond death, crucifixion and amputation, a syariah court judge has only the option of jail term up to five years. No whipping. No fine.
In comparison, the Penal Code offers more variety of punishments for different forms of robbery or related offences. For example, mere attempt to commit robbery without even carrying out the crime may land a person to a seven year jail term and fine. [Section 393]
In the Yeoh case, there were five robbers, so this constitutes gang robbery, which carries the maximum punishment of 20 years in jail and also whipping. [Section 395]
If the attempt was discovered and stopped, making preparation to commit gang robbery may lead to a maximum jail term of 10 years and whipping. [Section 399]
The robbers also came armed with parangs. This will make them liable to whipping on top of any
other punishments. [Section 397]
For readers who are interested in more details, here is a brief comparison of the punishments for theft and robbery under the Kelantan Syariah Criminal Code and the Penal Code.
Honesty please
I have been attacked maliciously on internet for examining in details the implications of being robbed by Muslims and falling prey to road rage under the Kelantan code.
Some called me insulting Islam and provoking the Muslims while others insist that I oppose the Code purely out of ignorance. Of course, I would have also qualified as an “immoral liar” for Kelantan MB Ahmad Yakob.
I do not expect people to share the same values with me. But I do expect honesty, and I believe that this is not an unreasonable expectation, on two issues.
First, what we are discussing here is the man made Kelantan Syariah Criminal Code, not the Quranic and hadith verses on the hudud and qisas punishments in the original context.
Much of the Syariah Criminal Code - which should be read and construed together with the Kelantan Syariah Court Evidence Enactment 2002 - is based on human intelligence in reasoning (ijtihad), not divine and therefore should not be exempted at all from scrutiny by fellow humans.
If the laypersons including the non Muslims have any misunderstanding, the lslamic scholars may provide their opinions but fundamentally this is an issue of law and justice, not religion and theology.
Second, if the fundamental argument for the implementation of Syariah criminal law is to deter crimes by imposing heavy punishments, with reference to the Yeoh case, can the Kelantan Code capable of an expected punishment of five year imprisonment in maximum be more effective than the Penal Code capable of 20 year imprisonment and whipping in maximum?
What is your honest judgment?
WONG CHIN HUAT earned his PhD on the electoral system and party system in West Malaysia from the University of Essex. He is a fellow at the Penang Institute, and a resource person for electoral reform lobby, Bersih 2.0.
