Syariah High Court dismisses Anwar's qazaf application against Muhammad Shafee

Syariah judge Mohamed Fouzi Mokhtar made the ruling after finding that the court had no jurisdiction to hear the application because sodomy was not included under the qazaf offence.

On June 26 last year, the former opposition leader had filed a qazaf complaint at the Selangor Islamic Religious Department enforcement division here, through his wife Datin Seri Dr Wan Azizah Ismail, who is also PKR president.

The complaint was made after Muhammad Shafee's action of accusing Anwar of sodomising his former aide, Saiful Bukhari Azlan was made without producing four male witnesses or the oath of the accused (Anwar), as required by syariah law.

In the complaint, Muhammad Shafee was alleged to have made the statement at an open dialogue organised by the Captain Hussein Leadership Academy in Kelana Jaya, Petaling Jaya on Feb 17, 2015.

According to the complaint, the Imam Syafie mazhab (school of thought within Islamic jurisprudence) placed the sodomy under the 'zina' (illicit sexual intercourse) category and a sodomy accusation without producing four male witnesses was a qazaf offence.

Mohamed Fouzi in a 21-page judgment said there was a difference of opinion on whether sodomy could be included as an offence under the zina category or not.

He noted that the Selangor legislative bodies had placed the qazaf offence under Section 36 of the Selangor Syariah Criminal Enactment 1995 but the word 'zina' that was mentioned in the provision (Section 36) was only interpreted as a sexual intercourse between a man and a woman who were not married without placing the sodomy act under it.

"The question is, whether the alleged sodomy act can also be construed as 'zina' based on the views of Islamic scholars? Generally, the Islamic scholars have different opinions regarding this issue, whereby most of them stated that sodomy is included under zina.

"In making the interpretation on zina, lawmakers have taken the views of Imam Abu Hanifah who said that the sodomy act was not a qazaf offence but it was included under the takzir (discretionary punishment)" he said.

Mohamed Fouzi said lawmakers certainly had not been erroneous in making the interpretation because they had chosen to adopt the view that they thought it was appropriate to the current state of society in this country, even if it was not based on the view of the Shafie sect.

He said the court did not deny that the view was a minority but once it was adopted as a law it became strong and should be observed.

Whether the court could extend the interpretation of zina, he said, at the moment, the power of a syariah judge was subject to the jurisdiction which was allocated to him.

"If the court made a decision on a case that is not within its jurisdiction or misinterpreted a provision, the court's decision can be invalid and cannot be executed," he said.

Mohamed Fouzi said whether the court had sufficient reason to approve Anwar's qazaf application against Muhammad Shafee, the court believed that at this stage, the complaints made was not as heavy as to prove that a person was guilty in committing an act.