KUALA LUMPUR – The legal fraternity have voiced differing opinions about the Johor government’s recently announced plans to establish a rehabilitation centre for religious ‘deviants’ and members of the LGBT community.
Their conflicting views revolve around constitutional provisions on the freedom of religion and the right of state legislative assemblies to make shariah enactments.
Shariah lawyer Nizam Bashir is of the view that the centre’s establishment would be “problematic”, as detaining a person in a rehabilitation centre should not precede confirmation of guilt or innocence by the court.
He said provisions in the federal constitution on freedom of religion have to be read together with other articles on a person’s liberty (Article 5) and on equality before the law (Article 8).
“Pre-conviction detention accepted as a legitimate means to address religious deviancy and those said to be a part of the LGBT community is problematic.
“Part of the right to a fair trial means that there is a presumption of innocence for all individuals until they are convicted of whatever crime.
“By extension, it pays to ask: where is that presumption of innocence if someone is permitted to be detained without first being convicted of a crime?” Nizam told Scoop.
Where freedom of religion is concerned and what would constitute deviancy, Nizam noted that Article 11 on the freedom to profess and practise a religion other than Islam, is only restricted with regards to propagating that religion to Muslims.
“If someone chooses to believe – without propagating his or her belief – in some ‘deviant’ strand of whichever faith, can that person be subjected to any criminal prosecution by the government or relevant authority?” Nizam said.
He also questioned if sending someone to a rehabilitation centre to return to their “original nature” adequately fell within the range of shariah punishments allowed.
Penalties by the shariah court currently only permit imprisonment for a term not exceeding three years, a fine not exceeding RM5,000 and whipping not exceeding six strokes, or any combination thereof, in accordance with the Shariah Courts (Criminal Jurisdiction) Act 1965 (Act 355).
“Consequently, setting up such a centre would be contrary to the law,” he said.
However, Nizam said it would also be against the law for anyone to stop the centre’s establishment, but those against it can file to quash the authorities’ decision or action.
Shariah enactments allow rehab for ‘deviants’
However, senior lawyer Mohamed Haniff Khatri Abdulla, finds setting up such a rehabilitation centre to be lawful on the grounds that Article 11 on the freedom of religion does not apply to Islam.
Haniff Khatri told Scoop that when discussing religion, Article 3 on Islam being the religion of the federation has to be referred to as well.
Additionally, being in the LGBT community is a valid shariah offence since it has been legislated by the state assembly, he said.
“If you are a person into cross-dressing or if you are someone who would frequent night places (clubs), and you feel the urge to have sexual intercourse, then these shariah enactments apply to you.
“Power must be given to Islamic agencies. If they find anybody in (the) LGBT (community), then an alternative is to send them to a rehabilitation centre which is legalised under the state enactment,” he said.
A state legislature is allowed by the federal constitution’s Second List of the Ninth Schedule to make shariah enactments with respect to Islamic personal and family law, except for matters that are already in the Federal List.
For example, Shariah Criminal Offences (Selangor) Enactment 1995 under Section 54(1) does allow the shariah court to order a person to undergo “counselling or rehabilitation in an approved rehabilitation centre” for not more than six months.
Haniff Khatri added that the shariah court can direct a person deemed a “deviant Muslim” to undergo rehabilitation for a period of time.
“It is a valid process allowed under the constitution for Islamic authorities to have,” added the lawyer, who recently slammed gender rights group Justice for Sisters for telling the Johor government to stop plans for the rehabilitation centre.
Shariah lawyer Datuk Akberdin Abdul Kader also told Scoop that there is no provision in the law that prevents rehabilitation centres from being established.
Echoing Haniff Khatri, he said the Johor government can make state Islamic laws concerning Muslims.
With regards to LGBT persons, Akberdin said if they have “deviated beliefs in the LGBT context”, they could legally be placed in a rehabilitation centre.
“Laws in the respective states apply. (However), if it’s at the federal level, it’s different,” he added.
Senior lawyer Datuk Seri Jahaberdeen Mohamed Yunoos also said that Islamic precepts are a state matter, as long as offences legislated do not contravene the Ninth Schedule of the constitution. – December 4, 2023