KOTA BHARU, March 18, 2015:
After years of controversies and objections by both Barisan Nasional and PAS’ political ally, DAP, the Islamic-based party has finally tabled its amendments to the Kelantan Syariah Criminal Code (II) Enactment 1993 at the State Legislative Assembly here today.
The amendments which DAP claimed was an entirely new piece of legislation altogether were put forward by the Menteri Besar Datuk Ahmad Yakob, emphasising the Enactment’s provision stating that it will only apply to Muslims aged 18 and above who have committed the provided offences in Kelantan itself.
Offences which did not satisfy the requirements set out in the much debated Code will be tried as ta’zir instead, which meant that the punishments will be set as in accordance with the existing and relevant Malaysian laws.
Among the matters listed in the Code, including offences, its subsequent Hudud punishments, and the evidence required are as listed below:
(1) ADULTERY
Section 12(3) of the Enactment defined adultery as sexual intercourse between a man or woman whom are not her or his legal spouse as committing adultery.
It is important that by this definition, Muslims aged 18 and above who commit premarital sex would be considered as having committed the said offence and will face punishment laid out under Section 13(2) of the Code.
It however will not be applied to a man who had sexual intercourse with a woman who he thought was his wife, but in fact, was not.
PUNISHMENTS
Section 13(1) — If the offender who commits adultery is a mohsan (the offender is already lawfully married and have enjoyed sexual intercourse in the marriage), then he or she shall be stoned to death.
Section 13(2) — If the offender is a ghairu mohsan (the offender is unmarried or married but has yet to experience a sexual intercourse in marriage), he or she shall be punished with whipping of one hundred lashes and a year imprisonment.
(2) SODOMY
Section 14 states that sodomy has been committed when a man has carnal intercourse with another man, and also when a man has intercourse with a woman through the anus.
PUNISHMENT
The punishment for this offence is the same as prescribed for adultery, except in cases where a husband commits the act against his wife. This exception will see the offender punished with ta’zir punishment.
(3) SYURB (consuming intoxicating drinks)
Section 22 makes the offence of consuming liquor or any other intoxicating drinks, regardless of whether the consumption resulted in intoxication and irrespective of the quantity consumed, punishable by whipping of not more than 80 lashes and not less than 40 lashes.
(4) IRTIDAD or RIDDAH (Apostasy)
Under Section 23(1) of the Enactment, whoever that has voluntarily, deliberately, and with full awareness carry out an act or utter a word that affects or is against the fundamental Islamic beliefs that are deemed to have been known and believed by every Muslim, will be found liable under this offence.
PUNISHMENT
Section 23(3) — Whoever is found guilty of committing the offence of Irtidad shall, before a sentence is passed on him, be required by the court to be imprisoned within such period deem suitable by the Court for the purpose of repentance.
Section 23(4) — Where he is reluctant but there is still hope for his repentance, the Court shall consider for continuance until there is no hope for repentance, then the Court should pronounce the Hudud sentence (death sentence) on him and order the forfeiture of his property to be held by for the Baitulmal.
Provided that he repents, whether it is done before or after the death sentence is pronounced, but before it is carried out, he shall be free from the Hudud sentence and his property that was forfeited shall be returned to him.
(5) SARIQAH (Theft)
Section 6 of the Enactment makes it an offence for any person to secretly move a movable property out of the owner’s lawful custody or possession without his consent, with the intention to deprive the owner of the property.
PUNISHMENT
Section 7 – Any person who commits the offence, except in the circumstance set out in Section 8 (below) shall be punished with the following Hudud punishments:
  1. (a)   For the first offence, an amputation of the offender’s right hand
  2. (b)   For the second offence, amputation of his left foot
  3. (c)   For the third and subsequent offences, with imprisonment which term is not exceeding 15 years and is deemed appropriate by the Court.
Section 8 – Hudud punishment for Sariqah offences shall not be imposed in the following circumstances (only some are listed by The Rakyat Post):
  1. (a)   When the value of the stolen property is less than the nisab (a sum of money that is equivalent to the current price of gold weighing 4.45 grams or a sum to be determined by His Royal Highness the Sultan from time to time in accordance with the Shafi sect or any one of Hanifi Maliki, or Hanbali)
  2. (b)   When the owner of the stolen property has not taken sufficient precaution to guard it from being stolen
  3. (g)   When the offence is committed in extreme situations, including war, famine, disease, natural disaster, and the like
  4. (n)   When the execution of amputating hand harms or threatens the offender’s life
(6) PARDON
A wali (a relative of the victim who is entitled to remit the offence committed by the offender on the victim) may at any time before the execution of the punishment as qisas (equal retaliation punishment or equation for the offences of causing death or bodily injury to any person), pardon the offender either with or without a diyat.
Diyat is defined as a certain amount of money or property which amounts to the current price of gold weighing 4450 grams or at the rate prescribed by His Royal Highness the Sultan from time to time.
(7)   NUMBER OF WITNESSES
Section 40(1) of the Enactment states that for the all the offences listed out in the Code, not including adultery and sodomy, the number of witnesses shall not be less than two.
For sodomy and adultery, at least four witnesses are needed to prove the offences
(8)  QUALIFICATION TO BE A WITNESS
Section 41(1) requires each witness to be an adult male Muslim who is of the sound mind and just. The witness shall be considered as just if he does what is required of him by Islam, avoids committing great sins and does not continuously commit lesser sins, as well as act in ways that protects his sense of honour. The witness shall be deemed as just, until the contrary is proven.
(9)  NATURE OF TESTIMONY
Section 42(2) – Each witness shall state clearly that he has actually seen the act complained and in the case if adultery, the four witnesses shall state that they have actually seen the act of penetration of the male sexual part into the female sexual part and furthermore, there shall neither be contradiction nor inconsistency among the witness in such testimony.
(10) CIRCUMSTANTIAL EVIDENCE
Section 46(1) – Except prescribed in subsection (2), circumstantial evidence though relevant shall not be a valid method of proving a Hudud offence
Section 46(2) – In the case of drinking liquor or any other intoxicating drinks, the smell of liquor in the accused’s breath, or the fact of him vomiting liquor or any other intoxicating drinks or traces thereof, or the observation by the court of the accused being in a state of intoxication shall be admissible as evidence to prove that he has committed the offence of syurb, unless, the offender can prove to the contrary.