The Federal Constitution, the highest law of the land, provides that criminal law will fall under the jurisdiction of the federal powers, while syariah law can be created by the states’ own legislative assembly.
The Ninth Schedule, List I, Paragraph 4 places crime-related laws under the authority of Parliament (Federal). The Ninth Schedule, List II, Paragraph 1 provides that the state government does not have the power to create any criminal law.
The addition of clause 1A to Article 121 of the Federal Constitution had effectively granted jurisdictional independence to the syariah courts by protecting them against interference by the civil courts. However, with the newly-gained powers, syariah state enactments similar to the Syariah Criminal Offences (Federal Territories) Act 1997, have incorporated the criminal offence of liwat, to be tried by the syariah court, when another genuinely identical criminal offence is already specified under Section 377A of the Penal Code. Both provisions of law share common interpretative similarities, and both provide punishments for the offence of sodomy.
The resulting conflicts of law highlights a confrontation for judicial power between the federal and the state authorities, while perhaps, more subtly, exposes a clash between secular and religious ideologies.
Questions such as where should a case of sodomy involving a Muslim and a non-Muslim be heard, would it be more appropriate if such cases involving a Muslim offender be brought and heard by the syariah courts, what are the guidelines to be followed in order to determine under which law should a Muslim who commits sodomy be charged, when can Section 41 (Qazaf) of the Syariah Criminal Offences (Federal Territories) Act 1997 be used against Muslim offenders, would it be appropriate and applicable to amend the penalty under Section 377A so that it complies to the requirements of the syariah law and what are the differences of evidential requirements between Section 25 and Section 377A need to be answered and investigated further.
This writing aims to look at possible solutions that can be taken into account for the making of law and regulations that can avoid conflicts of law between Penal Code and syariah criminal law in the future. It is a small effort to undertake the challenge thrown by Tun Abdul Hamid Mohamad to harmonise the common law and the syariah law:
That is what the Law Harmonisation Committee is trying to do: to find out which provisions in the relevant laws are not Shari’ah compliant and amend them to make them Shari’ah compliant. Besides, the Committee is also trying to introduce Shari’ah principles into our law to facilitate the development of Islamic banking, Islamic finance and takaful.
I thought I could get the assistance from the Islamic universities, Shariah faculties, Islamic departments, institutions and organizations. With so many Masters and Doctors being produced in comparative law, with so many lecturers and professors doing research and teaching law and Shari’ah, I thought I could just appeal to them to submit their findings to the committee and we could straightaway start drafting. Unfortunately, it did not happen that way. In spite of the fact I had written scores of letters and visited three Islamic universities to plead for their contribution, I have not received a single response. I just cannot believe that no one in his or research, thesis, or lecture had not come across such provisions.
Since there are many academicians in this hall, I would like to take this opportunity to appeal to all of you that if, in the course of your research or teaching, you had come across any area in our law applicable to Islamic finance which are Shari’ah non-compliant or which are not conducive to the development of Islamic finance, please let us have them, preferably with the Shari’ah position and your recommendation. We will even invite you to present your findings and suggestions at our meeting.1
1. Tun Abdul Hamid Mohamad, “Harmonisation of Shari’ah and Common Law in Malaysia: The Way Forward”, available at http://www.tunabdulhamid.my/index.php/speech-papers-lectures/item/317-harmonisation-of-shariah-and-common-law-in-malaysia-the-way-forward, accessed on 20 June 2013.