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Malaysian Criminal Law- Islamic Law -Sodomy (Liwat) under Islamic Law and Malaysian Law
Question 1
What is meant by sodomy in Islamic law?
Answer:
Sodomy refers to anal sexual intercourse between two males. In Islamic teachings, it is regarded as an unnatural sexual act committed for sexual gratification and is considered destructive to morality, social order, and human nature.
Question 2
What is the Qur’anic basis for the prohibition of sodomy?
Answer:
The prohibition is derived from Qur’anic narratives concerning the people of Prophet Lut (AS). Allah condemns their conduct for engaging in sexual relations with men instead of women, describing it as a form of lewdness unprecedented among earlier communities and as conduct that exceeds moral limits (Surah al-A‘raf 7:80–81; Surah Ash-Shu‘ara 26:165–166).
Question 3
What do the Hadiths say about sodomy?
Answer:
Several Hadiths strongly condemn sodomy. The Prophet (SAW) described same-sex acts as a grave wrongdoing and expressed fear for his community regarding the acts of the people of Lut. Other narrations state that those who engage in such acts incur Allah’s curse. These Hadiths form the moral and legal basis for the prohibition of sodomy in Islam.
Question 4
How does Islam view sodomy in relation to human nature?
Answer:
Islam views sodomy as contrary to human nature (fitrah). Human beings are created in complementary pairs—male and female—and moral, emotional, and physical fulfilment is achieved through heterosexual marriage. Homosexual conduct is therefore seen as contradicting the natural order established by Allah.
Question 5
Is sodomy treated as a hadd offence or a ta‘zīr offence in Islamic law?
Answer:
There is juristic disagreement:
- Imam Malik, Imam Shafi‘i, Imam Ahmad, and the Zaydi school regard sodomy as a hadd offence equivalent to zina, relying on Hadiths that prescribe severe punishment.
- Imam Abu Hanifah considers sodomy a ta‘zīr offence, not a hadd offence, meaning punishment is discretionary and determined by the authority.
Question 6
What is the position on sodomy under Malaysian Syariah law?
Answer:
Under section 25 of the Syariah Criminal Offences (Federal Territories) Act 1997, sodomy is criminalised as liwat.
Question 7
How is “liwat” defined under Malaysian Syariah law?
Answer:
Section 2 of the Syariah Criminal Offences (Federal Territories) Act 1997 defines liwat as sexual relations between male persons.
Question 8
What is the punishment for liwat under section 25 of the 1997 Act?
Answer:
Upon conviction, an offender is liable to:
- A fine not exceeding RM5,000, or
- Imprisonment for a term not exceeding three years, or
- Whipping not exceeding six strokes, or
- Any combination of the above.
Question 9
How does sodomy under Syariah law relate to offences under the Penal Code?
Answer:
The offence of liwat under Syariah law overlaps with offences under the Penal Code, particularly:
- Section 377A (sexual intercourse against the order of nature), and
- Section 377D (outrages on decency).
However, the Penal Code provisions are broader in scope than the Syariah offence of liwat.
Question 10
What was decided in Sukma Darmawan Sasmitaat Madja v Ketua Pengarah Penjara Malaysia?
Answer:
The court held that when an act constitutes an offence under the Penal Code, the civil courts retain jurisdiction, even if the conduct may also be described using Syariah terminology. The Sessions Court was competent to try the offence under section 377D of the Penal Code, as it was not trying an offence of liwat under Syariah law.
Question 11
What is the effect of the Federal Court decision in Iki Putra bin Mubarrak v Kerajaan Negeri Selangor on sodomy offences?
Answer:
The Federal Court ruled that state Syariah provisions criminalising unnatural sex were unconstitutional because criminal law falls under Parliament’s legislative power. As a result, state Syariah enactments creating offences that overlap with federal criminal law may be invalid.
Question 12
What is the overall legal position on sodomy in Malaysia?
Answer:
While sodomy is condemned under Islamic law and addressed in Syariah enactments, its enforcement in Malaysia is subject to constitutional limits. Where conduct falls within the Penal Code, civil courts have jurisdiction, and Syariah provisions must not encroach upon Parliament’s exclusive power over criminal law.
Exam Tip (One-liner)
Sodomy (liwat) is morally condemned in Islam, juristically disputed as hadd or ta‘zīr, and constitutionally constrained in Malaysia due to Parliament’s exclusive power over criminal law.
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