本週，遭投诉涉嫌多宗性骚扰的骨科医生被停职两个月以展开进一步调查。 与此同时，陪同副部长进行眼睛检验的助手，已因性骚扰验光师而在上週遭革职。 这些案件皆引起公众的广泛关注，惟这些仅是众多性骚扰案件中的冰山一角；在投保的案件中，依然有许多案件没有投保。 当问责机制薄弱之时，施暴者将胆大妄为地滥用权力，并肆无忌惮地进行骚扰。 我们现有的性骚扰法律框架存有严重的缺陷，无法全面防范性骚扰行为。因此，我们必须製定性骚扰法令。 目前我们制定了“预防和消除工作场所性骚扰守则”，为雇主提供内部处理性骚扰案件的指南。然而该守则属自愿性质，允许雇主选择遵从与否。 与此同时我们还有“公共领域职场性骚扰处理指南”，惟这仅是指南且仅涵盖公务员。 目前的雇用法令授权让雇主调查性骚扰投诉，惟一旦雇主认为该起性骚扰案件属于“轻浮、无理取闹或意带不善”，雇主可以选择不调查。这导致这些案件极依赖雇主的意愿，从中可见权力不平衡的问题。 更甚的是，雇用法令并没有概述调查前后，幸存者应有的权力、补救措施及应得的保护；该法令仅仅要求雇主就投诉进行调查而已。另外，此雇用法令并未涵盖沙巴与砂拉越。 2016年，联邦法院在涉及两名朝圣基金局员工的性骚扰案件中做出先例性判决，允许性骚扰侵权行为可获赔偿，意味着受害者可以起诉性骚扰者并获得赔偿。然而民事诉讼需缴付昂贵的费用且审讯时间冗长。另外，案件也将公开审讯，这将对幸存者的身份保密带来伤害。 现有法律框架的不足显示大马需要制定一个性骚扰法令，其中必须包括以下的一些规定： 首先，性骚扰的定义必须涵盖所有性骚扰的形式，包括口头、视觉、手势、身体和心理上的骚扰。 其次，性骚扰法令不仅要涵盖工作场所，也必须包括其他如教育机构、公共场所等其他地方，同时也必须涵盖沙巴和砂拉越。 第三，性骚扰法令必须拥有完整机制，如独立的审查机制，让幸存者能尽快且低花费和不公开地进行司法程序。此外，该法令必须要求各个机构实施性骚扰政策。 为遭受性骚扰者提供强而有力的法律保护非常重要，因这可传达性骚扰是不可被接受的行为。…
HUDUD IN TERENGGANU – A LAW TO PROTECT RAPISTS
The Hudud Bill drafted by the Terengganu state government constitutes a gross violation of the principles of justice and equality in Islam.
Under this Bill, a woman who reports she has been raped will be charged for qazaf (slanderous accusation) and flogged 80 lashes if she is unable to prove the rape.
An unmarried woman who is pregnant is assumed to have committed zina, even if she has been raped.
A woman cannot be a witness.
It is perverse that the drafters of this bill should regard rape as a woman’s defence against prosecution for zina rather than as a violent and serious crime against women. It is even more unjust that the bill places the burden of proof of rape squarely on the woman’s shoulders and will flog her 80 lashes if she does not provide clear proof of the rape.
Rape is a serious offence and justice demands that it is the state that initiates proceedings against the alleged rapist and the burden of proof is on the state, not the victim.
The failure to draw a distinction between rape and zina in the hudud law of many Muslim countries have led to rape victims being charged for zina and qazaf because they are not able to produce the four male witnesses required to prove that they are not consenting parties to zina.
The victim’s police report of rape is then taken as a confession of illicit sex in these countries. Judges have concluded that the intercourse therefore had the consent of the victim and found the rape victim guilty of zina, while the alleged rapist is released for lack of evidence. In some cases, the rape victim is also found guilty of qazaf because she could not produce the four male witnesses to prove rape and therefore has slandered the alleged rapist’s good name. The only way a rapist can be convicted under this so-called Hudud law is through a confession, which, in any case, he can withdraw at any time later.
These gross abuses are well documented and women’s groups in Malaysia have objected to similar discriminatory provisions in the Kelantan Hudud Enactment of 1993. And yet, the Terengganu state government has not only chosen to ignore these concerns, but instead included an additional discriminatory provision to flog women 80 lashes if they cannot prove their report of rape.
The proposed law seems to be a total distortion and perversion of God’s Law. The Divine Law of God discriminates in favour of women as it recognizes the vulnerability of women as victims to sexual assaults and the charge of zina and is clearly designed to protect women from such accusations. However, these man- made codifications discriminate against women and further victimizes women by specifically discouraging and intimidating rape victims from coming forward and effectively protecting rapists from the consequences of their crime.
It would seem to give licence to rapists to rape women with impunity – it provides effective escape for the rapists and guarantees punishment for the victims who are brave enough to come forward or unfortunate enough to get pregnant.
These irrational provisions that discriminate against women are man-made innovations; there are no such provisions in the Qur’an and authentic hadith. On the contrary, the Qur’anic provisions are very protective of women.
The requirement of (at least) four witnesses that is provided for in the literal meaning of Surah An-Nur 24 : 4 was specially revealed to protect women from slander and casual accusations of zina, not to protect men from charges of rape :
And those [masculine plural] who launch a charge against chaste women [muhsanat- feminine plural], and produce not four witnesses (to support their allegations) – flog them [masculine plural] with eighty stripes and reject their [masculine plural] evidence ever after; for such men are wicked transgressors
In Arabic grammar, masculine plural may also be used in a general sense to include both males and females, therefore women who accuse other women of zina may also be liable for the offence of qazaf. However, feminine plural is used in a specific sense to include females only.
In his commentary to this Ayat, A. Yusuf Ali states :
The most serious notice is taken of people who put forward slanders or scandalous suggestions about women without adequate evidence. If anything is said against a woman’s chastity, it should be supported by evidence twice as strong as would ordinarily be required for business transactions, or even murder cases.
In his commentary, Muhammad Asad states :
The term muhsanat denotes literally “women who are fortified [against unchastity]” i.e., by marriage and/or faith and self-respect, implying that from a legal point of view, every woman must be considered chaste unless a conclusive proof to the contrary is produced.
The letter and spirit of the revelations in Surah An-Nur is to protect women from being victimized by slanderous accusations of zina. The occasion for revelation (asbab al-nuzul) of this ayat is the historical incident where the Prophet’s wife, Aishah r.a., who had accompanied him on an expedition in the year 5 A.H., was inadvertently left behind when the Muslims struck camp before dawn. Several hours later, she was found by one of the Prophet’s Companions who put her on his camel and brought her, leading the camel on foot, to the next halting place of the army. This incident gave occasion to enemies to raise a false and malicious rumour. Following this episode, the four witnesses rule was imposed through divine revelation to require the strongest possible direct evidence before any allegations might be made against a woman’s chastity.
It is an accepted doctrine in Islamic law that it is better for many guilty persons to go free from earthly punishment than for one innocent person to be wrongly convicted. However, this doctrine has been perverted in these man-made innovations. The idea seems to be that it is better for almost all guilty men to go free (although some of them have sinned not only against God but also committed a violent crime against a fellow human being) than for one innocent man to be wrongly convicted and that it is better for many innocent women to be wrongly convicted and further victimized than for one guilty woman to go free (although she has only sinned against God).
The Hudud draft bill disqualification of women as witnesses in all cases of hudud and qisas (principle of retaliation) also has no precedence in the practice of the Prophet. There are cases in which the Prophet accepted the evidence of a woman e.g. in the case of a girl who had been robbed and brutally assaulted (reported in Muslim, Jamaul Fawaid Hadith No. 5231, 5233 and 5234), and in the case of a woman who was raped by an unknown man on her way to the mosque for the dawn prayers (reported in Abu Daud and Tirmidhi). There is also the instance of the wife of Sayidinna Othman, who was the only witness to the assassination of her husband. It was solely on the basis of her evidence that there was a demand for qisas by a number of Companions, and none raised any objection that in the absence of a male witness the demand for qisas was not tenable
We urge the Terengganu state government to end its mysogynistic attitude and also consider the constitutional validity of legislating on matters of criminality which is the subject of federal legislative jurisdiction. What is needed is a wide public debate on whether the objectives of Islamic criminal justice could ever be achieved when implemented in isolation in a very imperfect world.
The result could be oppression and injustice, especially against women, as the record has shown in many Muslim countries. It has brought Shariah and Islam into disrepute.
1. Sisters in Islam
2. National Council of Women’s Organisations (NCWO)
3. All Women’s Action Society (AWAM)
4. Association of Women Lawyers (AWL)
5. Majlis Pertubuhan Ibu-Ibu Tunggal Malaysia
6. Malaysian Association of Social Workers
7. Wanita Ikram, Persatuan Komuniti Ikram, Kuala Lumpur
8. Women’s Aid Organisation (WAO)
9. Women’s Crisis Centre, Penang (WCC)
10. Women’s Development Collective (WDC)