Definition of Sodomy
Sodomy, which literally translates to liwat in Malay, is simply defined as “sexual relations between male persons” in Section 2 of the Syariah Criminal Offences (Federal Territories) Act 1997. This is in contrast to Section 377A, where the offence of carnal intercourse against the order of nature is more illustratively detailed as “sexual connection with another person by the introduction of the penis into the anus or mouth of the other person”.
Looking at both of these definitions, it is evident that Section 377A has a wider meaning as it not only include “sexual relations between male persons” as defined by the Syariah Criminal Offences (Federal Territories) Act, but can also include sexual relations between a male and a female. This difference between elements of two offences is highlighted by Farid Sufian Shuaib, who explained why the offence of indecent acts under the Penal Code and the offence of liwat under the syariah law are different:
This interpretation however is difficult to implement since offences are different from elements of an offence.
For example, a person who committed robbery using unlicensed fire arm can be charged with different offences. He can be charged with robbery, causing hurt or in possession of unlicensed fire arms. Although the offences refer to the same series of facts, each offence have different elements and must be proven in the court as separate offences.
Similar example is, if a person is being charged in civil court for indecent acts, technically he can also be charged in Shariah courts for the offence of liwat as indecent acts’ elements are different from the elements required under the Shariah offences enactment. As both offences are different, it is inaccurate to say that the said Shariah offence is not valid due to ‘similar offence’ in the Penal Code as according to the law, the offences are not the same.1
Dato’ Zulkifli Noordin had told the Dewan Rakyat on 20th October, 2011, that he views a number of sections in the Enakmen Kesalahan Jenayah Syariah (Hudud dan Qisas) Terengganu 1423H/2002M as contrary to syariah.2 One of it is Section 14, which does not regard an act of sodomy forced on a wife as the defined criminal offence of ‘sodomy’. Sodomy is defined as “sexual intercourse between a man with another man or between a man and a woman other than his wife which is performed against the order of nature.” Members of Parliament from the opposition parties during the Parliament sitting have emphatically dismissed Dato’ Zulkifli’s view, with Salahuddin Haji Ayub (PAS) calling him a ‘hypocrite’, Mohd. Yusmadi Yusof (PKR) calling him as ‘stupid’, while Dr. Dzulkefly Ahmad (PAS) calling him a ‘pig’.2
The creation of a criminal offence by Section 25 is in contradiction to the Ninth Schedule, List I, Paragraph 4 of the Federal Constitution. By referring to the case of Sukma Darmawan Sasmitaat Madja v Ketua Pengarah Penjara Malaysia & Anor  2 MLJ 241, Tun Abdul Hamid Mohamad, explained why the sodomy offence in the state syariah enactments, similar to Section 25, is unconstitutional. According to Tun Abdul Hamid:
To me the newly created offence in the state law is unconstitutional, it being ‘criminal law’ under the Federal List and such an offence had existed since before independence. Furthermore, art 75 of the Federal Constitution clearly provides:
If any state law is inconsistent with a Federal law, the Federal law shall prevail and the state law shall, to the extent of the inconsistency, be void.3
Both of the definitions of Section 377A and Section 25 can be used to describe the offence of sodomy. When both of these provisions share common interpretative similarities, it can be deduced that these provisions overlap one another.
Dato’ Abdul Hamid bin Haji Mohamad, as he was then known, submitted that the overlapping between the syariah offence of liwat and Section 377A results in unavoidable conflicts:
However, in 1996 the Syariah Criminal Offences (State of Penang) 1996 (Again, I am using the Penang Enactment as my reference. Enactments in other States and the Federal Territory Act contain similar provisions.) introduced new offences eg, gambling, incest, prostitution, muncikari (defined as ‘a person who acts as a procurer between a female person for any purpose which is contrary to Islamic Law’), liwat (defined as ‘sexual relations between male persons’), musahaqah (defined as ‘sexual relations between female persons’) and indecent acts in public place.
At least some of these offences, to a certain extent, appear to overlap with offences already in existence in the Penal Code and other federal laws. ‘Liwat’, for example, appears to overlap with ‘sexual intercourse against the order of nature’ and ‘outrages on decency’ (ss 377A and 377D of the Penal Code, respectively), ‘muncikari’ and ‘indecent acts in public place’ with ‘outrages on decency’ (s 377D of the Penal Code which includes ‘procures or attempts to procure’) and ‘gambling’ with ‘gaming in common gaming house’ and ‘gaming in public’ (ss 6 and 7 respectively of the Common Gaming Houses Act 1953 (Act 289). (It should be pointed out that the Penal Code too had undergone changes over the years. For, example, what was ‘unnatural offence’ (s 377) was in 1989 split into ‘buggery with an animal’ (s 377) and ‘carnal intercourse against the order of nature’ (s 377A)).4
These new offences (provided by the State Enactments) were made after the introduction of art 121(1A) of the Federal Constitution. So, it was inevitable that a conflict would one day arise. And, it did arise in the case of Sukma Darmawan.
To have Section 377A and Section 25 on sexual offences, our Malaysian Legal System may not merely seen as having two judicial systems governing the prosecution of sexual offenders but also having two criminal laws for one similar criminal offence.
While criminal law is in federal hands, the power to create and punish offences against the precepts of Islam has been assigned to the states by the Ninth Schedule, List II, Paragraph 1. However, this power is still subjected to several restrictions. Syariah courts only have jurisdictions over persons professing the religion of Islam. Syariah courts also do not have jurisdiction in respect of offences “except in so far as conferred by federal law”, and also state authorities can only legislate for Islamic offences “except in regard to matters included in the Federal List”. As Professor Dr. Shad Saleem Faruqi surmised, this has made the Constitution “hopelessly ambiguous”. He states that:
In Schedule 9, List 1, Item 4 it assigns the entire field of criminal law and procedure to the federal Parliament without specifying the areas permitted to the states.5
As it stands now it appears that the states not only can enact laws for residual matters as khalwat, zina, drinking, not fasting or missing Friday prayers but also on homosexuality.
Tun Abdul Hamid Mohamad stated that in revising the Islamic laws administered by the syariah courts, more offences were created, some of them overlap with the existing criminal law which is a Federal matter within the jurisdiction of the common law courts. By giving an example of a sodomy case, Tun Abdul Hamid said that both laws: Section 377A and Section 25 shared common interpretative similarities.
Tun Abdul Hamid also acknowledged that in criminal matters, it is a matter of drawing the line between what are Federal matters and what are state matters, such as the interpretation of the Lists. He further stated that besides referring the issue of validity of the law to the Federal Court under Article 128 of the Federal Constitution, the judgement of the Court of Appeal in Sukma Darmawan may also provide the solution.4
The late Justice Harun Hashim through his writing seem to acknowledge that a conflict would arise in our legal system in particular reference to unnatural sexual offences and this has been attributed to in one way or another to the introduction of Article 121(1A) of the Federal Constitution. He further highlighted that Islamic law affecting Muslims is within the sole legislative power of the States and pointed out that conflict of laws is an interesting and absorbing subject for academic study and research. This is so because according to him it gives impact on the personal life of a person caught in the web of a conflict of laws situation which can be very devastating6.
Limited Jurisdiction of a State
The late former Justice Harun Hashim highlighted that because the syariah law is within the sole legislative power of the states, a further conflict will arise when a syariah lawyer from one state cannot practice in another state:
Of particular difficulty is that Islamic law affecting Muslims is within the sole legislative power of the States. To complicate matters further each State has its own laws and its jurisdiction does not extend beyond the borders of the State or the Federal Territories.
Thus a peguam syarie who has been admitted to practise in the syariah court of a State cannot practise in another State unless he has been admitted to practise in the other State unlike advocates and solicitors under the Legal Profession Act who can practise in all the States in the peninsula irrespective of which State he was admitted and enrolled by the High Court of Malaya.
Apart from the requirement that a peguam syarie has to obtain admission to practise separately in every State if he so wishes, there have been occasions when a peguam syarie with years of practice in one State has been refused admission by another State!6
Expanding the Jurisdiction of the Syariah Court
While several authorities deliberated in merging the civil and syariah courts to resolve the conflicts of law, there are reports that the religious authorities are looking into further expanding the jurisdiction of the syariah courts:
The religious authorities should look into expanding the jurisdiction of syariah courts if it were to upgrade the system from three to five levels.7
1. Farid Sufian Shuaib, “Administration of Shariah Criminal Justice Under The Malaysian Constitutional Framework: Issues and Suggestions”, 6 Malayan Law Journal Articles 6 (2011)
2. “Dewan Rakyat, Parlimen Kedua Belas, Penggal Keempat, Mesyuarat Ketiga”, available at http://www.parlimen.gov.my/files/hindex/pdf/DR-20102011.pdf, accessed on 23 June 2013.
3. Tun Abdul Hamid Mohamad, “Harmonisation of Common Law and Shariah in Malaysia: A Practical Approach”, 2 Malayan Law Journal Articles 4 (2009)
4. Dato’ Abdul Hamid bin Haji Mohamad, “Civil and Syariah Courts in Malaysia: Conflict of Jurisdictions”, 1 Malayan Law Journal Articles 12 (2002)
5. Shad Faruqi, “Thoughts For the Future”, Sunday Star, July 14, 2002.
6. Harun Hashim, “Benchmark: When non-Muslims are affected by syariah courts”, New Straits Times, September 4, 2003.
7. Masami Mustaza, “”Syariah court must first expand its jurisdiction””, New Straits Times, April 14, 2012.