Syariah – Illegitimate Code

Paedophilia in Malaysia

Hot on the heels of marital rape comes another issue – paedophilia – that is igniting all sorts of debate in the media. The news that a Malaysian student at Imperial College being charged and imprisoned for the possession of over 30,000 items of child pornography, sent shockwaves through our community.

What is shocking isn’t the fact that a Malaysian student was found guilty of such proclivities, but rather the reaction of the government, institutions and the people to this crime.

One minister actually suggested that the government appeal for a lightening of the sentence:

We can appeal (to reduce the length of the sentence), the problem is we are subjected to the prevailing laws of the country.

This encouraged the student’s sponsor, MARA, to suggest that the student be given a second chance to complete his studies in a MARA institution:

He said the opportunity was not exclusive to Nur Fitri Azmeer as the same opportunity could be given to any other MARA-sponsored student if they were faced with a similar fate.

One MARA council member likened paedophilia to truancy:

Students who play truant are given a second chance, so why is it different with Nur Fitri.

So, now we know where all the paedophiles of the country are going to go to school, and play truant while at it.

What is particularly sickening is that people in the country seem to lack the necessary tools to understand that the problem with paedophilia isn’t one of sexual preference but of a sexual crime. One can be both a homosexual and a paedophile. It isn’t in the same category. A paedophile isn’t like a homosexual. A paedophile is like a rapist since the issue is that of consent.

So, if people are willing to condone paedophilia, these same people are condoning rape.

Now, there is the problem because certain groups in our society do not consider sex with a minor as a crime, just like how some do not consider marital rape as a crime. This is a difficult problem to solve because it is one of values and values are different from individual to individual.

I won’t blame the normal rakyat for this confusion because our government has failed us on both regards. I have already highlighted how marital rape isn’t considered a crime in Malaysia as it is an exemption under S.375 of the Penal Code. However, as far as paedophilia is considered, there are no laws to govern it in Malaysia as highlighted elsewhere.

What is worse is the fact that sex with a minor is even legalised and halal under specific circumstances. There have been many cases of such things and many precedents where marriage with a girl under 16 is allowed with the permission of a Syariah Court under S.8 of the Islamic Family Law (Federal Territories) Act:

No marriage may be solemnized under this Act where either the man is under the age of eighteen or the woman is under the age of sixteen except where the Syariah Judge has granted his permission in writing in certain circumstances.

Keep in mind that this is very different from the concept of a minor entering into a marriage contract, which is also allowed under civil law. This is a child entering into a actual marriage in both fact and law.

Now, if you read this section with S.375 of the Penal Code, we come to the inexplicable conclusion that having sex with a minor is allowed in Malaysia as long as one is legally married under Syariah Law. While having sex with a minor is statutory rape under S.375(f) of the Penal Code, marital rape is an exception under the same law.

This is a worrying trend as has been pointed out recently that child marriages are on the rise in Malaysia:

In 2012, there were around 1,165 applications for marriage in which one party, usually the bride, is younger than the legal marrying age. The Syariah Courts approved 1,022 of them. This is an increase from the 2011 record, when some 900 marriages involving at least one Muslim minor were approved.

Therefore, it is hard to criminalise paedophilia, as generally understood, in Malaysia when there is legal recourse to engage in paedophilia. I am not going to go into the effects that child marriages and/or paedophilia have on our society as I’m sure that there are others far more qualified to discuss it. I’m just pointing out legal facts as it stands in Malaysia.

So, it is no wonder that the authorities are nonchalant about Nur Fitri’s crimes as they probably do not consider it as much of a crime at all, like truancy. If he had engaged in such proclivities in Malaysia, he would not be considered a criminal at all. If he took a child bride, then it would not only be legal, it would be halal too.

Such is the state of our law.

Islamic Divorce

We covered a lot of topics in class today, divorce, legitimacy, custody and inheritance. This blog entry is only about divorce though, because I find it interesting, especially since there are some peculiarities about the Law in Malaysia when it comes to annulment of marriages.

First, there is the standard talaq that is initiated by the husband. There are several categories of it but essentially: talaq raj’i, talaq bain sughra, and talaq bain kubra.

Talaq Raj’i is more a form of separation than an annulment, which is governed by S.51 of the Act. Essentially, the couple can choose to revoke their divorce, at any time, during the cleansing period Iddah of about 3 months. This is the lightest form of divorce with the least consequence.

Talaq Bain Sughra is a real divorce, which is governed by the same S.51 of the Act. In this case, the divorce cannot be revoked but the couple can choose to re-marry again, after the Iddah period has passed. In my opinion, this is a real divorce in the true sense of the word.

Talaq Bain Kubra is a final divorce, which is governed by the same S.51 and S.14 of the Act. In this case, the divorce cannot be revoked and the couple cannot choose to re-marry again, even after the Iddah period. This divorce is final and binding. They can only re-marry after the wife re-marries and re-divorces someone else first.

Also, the number of times a couple divorces is also considered. If a couple is divorced three times (talaq tiga), the divorce is considered final – of the last category. This is unlikely to happen in real-life as most cases of talaq tiga are done at a go, usually in a fit of anger.

Next, there is the issue of method of divorce. The most simple, obvious and direct method is Talaq Sarih which is basically the husband telling the wife in the face that he divorces her. The second method, which is fast gaining popularity is Talaq Kinayah which is an indirect method such as divorce via SMS, or through the use of ambiguous words.

Regardless of methodology and category of divorce, a marriage can only be annulled in the Court. This is governed by S.124 of the Act that does not allow any form of divorce outside of the Courts. A grace period of 7-days is give to the couple to report any divorce to the Courts and this is governed by S.55A(1) of the Act.

Typically, during the process of the divorce, the Court will appoint an arbitration committee to arbitrate as most divorces are messy and this is governed by S.47-S.49 of the Act. They can take several rounds of arbitration and finally, the recommendations are forwarded back to the Court.

Secondly, there is Khul’ governed by S.49 of the Act that essentially allows the wife to initiate the divorce. This form of divorce essentially allows the wife to ‘buy’ herself out by paying the husband a fee. To me, this is an interesting form of divorce. However, it is generally only accepted if there are irreconcilable differences on the part of the wife.

Thirdly, there is Fasakh governed by S.52 of the Act that is essentially a court ordered divorce. The grounds for such a divorce are many and listed in great detail in the Act. Some interesting examples are when the husband is imprisoned for more than 3 years, failure to perform marital obligations for a year, husband was impotent at time of marriage, insanity and also a partner suffering from an STI.

Fourthly, there is Ta’liq goverend by S.50 of the Act. This form of divorce is unique in Malaysia as it is sourced from Malay Adat instead of from Islamic Authority. Essentially, my take on this is that it’s a form of divorce by contract, where both parties agreed verbally to divorce under specific conditions. Once these conditions are met, the wife can initiate the divorce.

From the list of cases given for our reading, this form of divorce is the most common in Malaysia as it is also the easiest to do. From case law, one can almost make all kinds of requirements and conditions that when met causes the marriage to be voidable.

Finally, there is Li’an which is a very special case of divorce where the husband catches the wife in the act of adultery with another person. He can then apply for a divorce by taking an oath. This is governed by S.50A and S.110 of the Act. This form of divorce is final.

That’s it – a quick description of the various forms of divorce under Malaysian Islamic Law. Of course, there are a lot more details to cover but those are details that I’ll have to cover for my own examinations.

My take on it is that the freedom to divorce is generally in the hands of the husband, while the wife is allowed to initiate divorce under specific conditions. This may seem biased but this has to be balanced with what happens after divorce. The wife can file for all sorts of claims that are biased to her instead.

Therefore, my reading of the Law is that Islamic Law allows one to easily get married and to easily get out of it as well (in the sense that the rules and regulations are all nicely laid out). I think that this is essential for a way of life that encourages marriage and procreation by reducing the risk and consequence of failure.

Till death to us part may sometimes be taken too literally.

Where is Article 9?

In light of recent developments where Section 15(5) of the UUCA was found to contradict Article 9 of the Consti, I thought that I should highlight another potential inconsistency. I’ve started reading statutes and the Islamic Family Act one was the thinnest of them all.

Section 59(2) of the Act says:

(2) Subject to Hukum Syarak and confirmation by the Court, a wife shall not be entitled to maintenance when she is nusyuz, or unreasonably refuses to obey the lawful wishes or commands of her husband, that is to say, inter alia —

(a) when she withholds her association with her husband;
(b) when she leaves her husband’s home against his will; or
(c) when she refuses to move with him to another home or place,

without any valid reason according to Hukum Syarak.

Honestly, I think that there is an inconsistency between this section – particularly s.59(2b) and s.59(2c) – of the Islamic Family Act with Article 9 of the Consti, which says that:

(1) No citizen shall be banished or excluded from the Federation.
(2) Subject to Clause (3) and to any law relating to the security of the Federation or any part thereof, public order, public health, or the punishment of offenders, every citizen has the right to move freely throughout the Federation and to reside in any part thereof.
(3) So long as under this Constitution any other State is in a special position as compared with the States of Malaya, Parliament may by law impose restrictions, as between that State and other States, on the rights conferred by Clause (2) in respect of movement and residence.

So. I’m confused.