The Shah Alam Syariah High Court today dismissed Anwar Ibrahim's qazaf (bearing false witness) application against senior lawyer Muhammad Shafee Abdullah as it ruled it did not have jurisdiction to entertain applications related to sodomy.
Judge Mohamed Fouzi Mokhtar said this was because the Selangor state did not consider sodomy an offence similar to zina.
He said this was despite the acceptance by a majority of Islamic scholars that sodomy could be included under zina.
The court, he said, had limited jurisdiction and could only implement and interpret the law.
"As the jurisdiction of the court is limited, it is up to the state legislature or the federal legislature to extend it," the judge said in his oral decision.
“The court admits that the interpretation of zina (adultery) needs to be extended if it brings greater good to society and to safeguard the maqasid syariah (common ground in Islamic jurisprudence) to include efforts to safeguard the dignity of a person.”
Anwar wanted Shafee to be summoned by the Syariah court over his roadshow or dialogue session held at the Akademi Kepimpinan Kapten Hussein, on Feb 17, last year, after the former opposition leader was convicted of Sodomy II at the Federal Court.
He claimed that Shafee had committed qazaf for spicing up and including extra details of the purported sodomy incident, and challenged Shafee to produce four witnesses.
Fouzi felt that all matters related to the Syariah Court, including its standing and its laws, needed to be strengthened as Islam is the official religion of the country.
He said it was responsibility of the legislature - either the Dewan Rakyat or the state legislative assembly - to do this, not the courts.
“It is through them that the matter should be extended and taken action on in line with the principle of the separation of powers,” he said.
Fouzi said zina is defined as sexual intercourse between a man and woman who are not married (to each other), and this definition did not include sodomy.
The question is whether sodomy includes zina, he asked.
The judge said there were various Islamic literature where allegations of sodomy were the same as accusing one of zina, according to three religious scholars - Imam Malik, Imam Shafie and Imam Ahmad.
“However, Section 2 of the Syariah Criminal Enactment (Selangor) 1995 did not adopt the opinion of Imam Shafie. The court is of the opinion that the absence of sodomy included in the interpretation of zina is as a result of the legislature adopting one view based on Imam Abu Hanifah who did not consider sodomy as part of a qazaf offence.
“This is in contrast to Imam Shafie's view, which is adopted by the majority in this country. This court understands that the legislators did not intend to interpret the act of sodomy as part of zina. Hence, that should be accepted.”
Fouzi said it was not the duty of the court to correct this, but for the legislators to amend it.
“The court has limited jurisdiction in the administration of justice only and not to change, correct the law provisions as such tasks falls on the legislature,” he said.
“A judge only has jurisdiction in cases which he has jurisdiction. He cannot preside on cases where he has no authority or jurisdiction,” he said.
Anwar's lawyer, Fadhlina Siddiq, when met after the judgment said they respected the decision and the strong judgment made but said she had received instructions to appeal it. - Mkini