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Thursday, August 30, 2012

By whose interpretation?


Why does the age of the person determine which court has jurisdiction over cases involving illicit sex or zina? Do you mean to tell me that if you are not yet 18 then you are not yet a Muslim? Only when you reach 18 you become a Muslim? Can those under 18, therefore, drink and eat pork and go to church since you are not yet a Muslim and the Sharia court has no power over you until you touch 18?
NO HOLDS BARRED
Raja Petra Kamarudin
You may have noticed that I have not written a thing regarding former national youth squad bowler Noor Afizal Azizan’s statutory rape case.
First of all, I thought that since every man and his dog was already talking about it you don’t really need me to comment as well. I mean it is not quite the untold story that I normally like to dabble in. It is more like the ‘over-told’ story.
Furthermore, do you really need more ‘noise’? There is such a thing called overkill and flogging a dead horse (an idiom). There is also such a thing called information overload, which makes people lethargic and sometimes immune to the issue. Hence ‘too much’ can be counter-productive.
Secondly, this appears to have turned into an opposition crusade, which is bad. Once it is perceived as a political issue rather than an issue of justice, people become divided on the issue based on political leanings and not because it is either the right thing or the wrong thing. People will oppose right or support wrong if the criteria is politics. Take crossovers as one example.
Anyway, what is my take on the issue?
Okay, are you outraged about the court’s decision because you are an opposition supporter or because it is morally (or legally) wrong to not classify the case as statutory rape instead of consensual sex? (Note that even some of those in government feel the same way as you do although they speak ‘gentler’ in expressing their view and without the venom).
I think a more important question would be are you capable of setting aside politics when you talk about this issue -- or any issue for that matter that involves justice, civil liberties, etc? Can we leave our Barisan Nasional and Pakatan Rakyat hats outside the door and come to the table as Malaysians of common interests and concerns?
That is the one thing we find most difficult to do. It is always politics first and everything else second, even in matters such as Hudud, which is supposed to be above politics but is not.
Okay, so a man (or boy) has sex with an underage girl. My first question would be: are the men/boy and girl Muslims? If they are then this is zina (illicit sex or sex outside marriage). And is not zina a crime under the Sharia (Islamic law)? Hence should not the boy and girl be tried under the Sharia?
If the man/boy and girl were both above 18 they would have been brought to the Sharia court. Why are they not brought to the Sharia court just because one or both are below 18?
In Islam, the ‘age of consent’ would be the age of puberty. For girls that would be once she gets her period and that could even be when she is nine years old. According to the Hadith Sahih al-Bukhari, the Prophet Muhammad married Aishah when she was six but did not ‘take her’ until she was nine. And aren’t Muslims supposed to believe in and strictly follow the Hadith and Sunnah or else they cease to be Muslims and would become kafir (infidels).
Hence if the girl is 13 and she already has her period, is she legally (in Islam, that is) a woman who can consent to sex or is she still a child? And hence, also, since she is a Muslim and ‘legally a woman’, is she accountable for her ‘crime’ of consenting to sex or is she blameless? In other words, if the Sharia court were to try them, would both be on trial or only the man/boy?
Okay, we can argue that the Sharia court does not come into play here. This matter does not involve the Sharia court.
Why not? If Muslims above 18 ‘get caught’ for illicit sex they get dragged to the Sharia court. The common law court has no power to try Muslim adults who have sex outside marriage. In fact, sex outside marriage is not a crime under common law (even for Muslims) unless it is same-gender or gay sex.
Why does the age of the person determine which court has jurisdiction over cases involving illicit sex or zina? Do you mean to tell me that if you are not yet 18 then you are not yet a Muslim? Only when you reach 18 you become a Muslim? Can those under 18, therefore, drink and eat pork and go to church since you are not yet a Muslim and the Sharia court has no power over you until you touch 18?
Okay, what if the church or Christians preaches Christianity to Malay boys and girls of 13 or 14 (in short, below 18). Is this a crime? A crime under which law? Common law? Under common law it is not a crime to preach Christianity to Malay children. It is only a crime according to the Religious Department.
But the Religious Department does not have power over us until we are 18. Islam recognises 9-year olds as adults. Common law does not. We are adults only at 18. And common law decides whether we are adults. Not the Religious Department.
So how?
The question is: who has power over Muslims? The common law courts or the Sharia courts? And why does the common law court have power over us until we are 18 and then the Sharia court takes over after that? Is age 18 the ‘legally adult’ age in Islam? And if 18 were the legal adult age under Islam, can Muslims below 18 get married?
Yes, Muslims below 18 can get marriage on condition they are ‘adults’ (meaning reached puberty) and they have their parent’s consent. Hence at that age they are already responsible for their own actions, even in crimes of illicit sex.
But then we are not talking about the Qur’an, Hadith, Sunnah or Islamic law here. We are talking about common law. Hence common law overrides the Qur’an, Hadith, Sunnah or Islamic law and will decide at what age you are an adult and at what age you are still a child. And you will face the common law court when you are legally a child and the Sharia court once you are legally an adult. And although Islam has decided the age of adulthood, Islam has no power over Muslims because the laws of the land and Islam do not work in tandem.
Crazy or not? In Islam, religion decides when we become an adult and hence can get married and have sex. But Islam does not have the power to decide at what age we would be considered as having consensual sex outside marriage. That the common law decides. And that age is 18.
Now, who decides when we cease being a child and legally become an adult although at the age of nine we already discovered the difference between a boy and girl and knew what to do with that thing between our legs? Well, the 222 Members of Parliament, of course. They pass all the laws and they have decided that only at age 17 we can drive and at age 18 we can have sex and at age 21 we can vote.
But why at age 17, 18 and 21 respectively?
Queen Isabella of Valois married Richard II when she was 6 years, 11 months and 25 days old.
David II married Joan, the daughter of Edward II, when he was 4 years and 134 days old.
Louis XIV of France became King at age 5 and took over full control at 23.
Joan of Arc led the French against the English at age 17.
And of course we have that story regarding Aishah, the wife of Prophet Muhammad.
In those days, you married as soon as you legally became a woman, which was when you got your period, and would have been around age 9-11. At age 10-13 boys joined the army and fought and died for their country. These were ages when you were no longer children.
I know, times have changed and we no longer consider girls of 10 or boys of 13 as adults. That may be so when it comes to common law but not if we consider religion.
So, are we outraged about the case of Noor Afizal Azizan because we perceive it as him having sex with an underage girl and the law says a girl of 13 cannot consent to sex and hence he broke the law? Okay, so it is the law that we are concerned about, am I correct?
The law says that a girl of 13 cannot consent to sex. This is a law passed by Parliament, the body that can legally pass laws, which we all must follow. And since Noor Afizal Azizan broke the law passed by Parliament we are outraged.
Okay, I can accept that. The law must be followed. After all this is a law passed by Parliament. But hold on, Parliament also passed a law that says we must get a police permit if we want to hold a demonstration. Should this law not also be followed since we are extremely concerned about the law? Was Tunku Abdul Aziz Tunku Ibrahim therefore correct in that the law must be followed?
Hmm...touché or not touché?

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