Letter of dissent towards OGSM statement on Terengganu state Syariah Law

We, Muslim obstetricians and registered members of the Obstetrical and Gynaecological Society of Malaysia (OGSM) would like to distance ourselves from the statement made by the 2022/2023 OGSM Council on the 5th of December 2022 pertaining to the recent amendments to the Terengganu state Shariah law.

We are of the opinion that this statement was made prematurely without prior consultation with the Muslim members of the organization and most importantly, was made before any in depth clarification of the matter with the relevant legislative body.

This is especially important as this matter pertains to Islamic laws, which are only applicable to Muslims, and is also a reflection of our Islamic faith and convictions, protected by the constitution.

In order to gain more insight into this, a few Muslim members have engaged with the Terengganu state Shariah legislative personnel and collectively, we have come to the following conclusions:

1. Pregnancies should best be planned and wanted pregnancies, hence the importance of prepregnancy care to ensure optimal maternal health and social circumstances before conception. Pregnancies out-of-wedlock do not conform to this notion and should be discouraged from a medical point of view.
2. Marriage is the foundation of any society on which families are built and children brought into the world. It is essential in protecting lineage in Islam, one of the five main goals of Shariah law, otherwise known as Maqasid Shariah.
3. Lineage protection in Islam serves to safeguard the most basic rights of children, which among others, guarantees their rights to inheritance, is essential in determining mahram and in our increasingly critical society, prevents shame when paternity is denied. This protection also indirectly extends to women and their rights to alimony when relationships go south.
4. Shariah law provisions pertaining to pregnancies out-of-wedlock have already been in place as early as 1985, in at least eight other states in Malaysia before the Terengganu state amendments, which are well within the framework allowed by the constitution.
5. Similar to the proposed Control of Tobacco Products and Smoking Bill 2022 tabled recently, many processes will need to ensue before this enactment can be executed. Ample time will be given to draw up the technicalities, taking into consideration views from various stakeholders involved including the medical fraternity. Moreover, education of the masses with regards to this new amendment will continue, as well as ongoing holistic efforts by the Terengganu state government to curb premarital intimate activities.
6. Delving deeper into the technicalities, the amendments on pregnancies out-of-wedlock are only applicable to those 16 years old and above, and pregnant out of their own volition. Provisions for rape cases fall under the purview of the civil courts and not shariah courts.
7. The maximum punishment that can be meted out are 3 years imprisonment, RM5000 fine and 6 strokes of the cane. It would be prudent to point out that Shariah laws are primarily meant to deter by instilling fear, rather than punish. This is especially crucial in cases of repeat offenders, often with different partners, posing immense burden to extended family members and social workers.
8. Hence, it is the prerogative of the judge to decide the punishment suited to the circumstances and even practise leniency and compassion for first offenders, offenders who have repented and relatively young offenders. Offenders between the age of 10 and 16 years old are deemed young offenders and will not be eligible for imprisonment or caning. As an example, the enactment mentioned in Section 68 provides leniency for convicted female persons, whereby in lieu of the sentence, they can instead be rehabilitated in an approved home for a maximum of six months.
9. Not surprisingly, there have also been instances in other states whereby convicted female persons have opted to receive the caning punishment under shariah law in lieu of paying the fine, as it is very much more lenient compared to the caning punishment received under civil law.
10. It is also essential to highlight that punitive measures including the initial charges can only transpire after the birth of the child and hence, should not interfere with any antenatal care required by the mother. As such, concerns regarding community stigma and isolation during the duration of the pregnancy are disputable.
11. We would also like to emphasize that these Shariah amendments actually have provisions in place to not only identify, but punish the male counterpart responsible for the pregnancy. As we are aware, in instances where the sexual act is consensual, there are no provisions under civil law to charge the male culprit, resulting in him to get off scot free. Is this then, not looking out for the welfare of women and girls, especially in cases of undisclosed incest cases where we now have an avenue to address these atrocious practices against vulnerable victims?
12. We continue to affirm that education and community vigilance, hand in hand with state-led holistic measures which include punitive measures under Shariah Law, is vital to help reduce the alarming pregnancy out-of-wedlock statistics and contribute to better maternal and child health and well-being.

This is a joint statement by:

1. Prof. Dr. Zainur Rashid bin Zainuddin
2. To’ Puan Dr Maziah binti Ahmad Mahidin
3. Prof. Madya Dato’ Dr Hamizah Ismail
4. Prof. Dr. Zalina Nusee
5. Prof. Madya Dr. Mohd Azam Mohd Yusoff
6. Datuk Dr Noraihan binti Mohd Nordin
7. Dr. Shahril bin Abu Bakar
8. Dr. Azha Syahril Azizan
9. Dr. Rosilawati binti Abdul Ghani
10. Dr. Norashikin binti Abdul Fuad
11. Dr. Rusinahayati binti Mokhtarudin
12. Dr. Asmah Yun binti Mat Sidek
13. Dr. Zamzida binti Yusoff
14. Dr. Sukhilmi bin Othman
15. Dr. Amilia Afzan binti Mohd Jamil
16. Dr. Andi Anggeriana binti Andi Asri
17. Dr. Nor Syahaniza Waheeda binti Alias
18. Dr. Noraini binti Mulalek
19. Dr. Malini binti Mat Napes
20. Dr. Karimah binti Mohd
21. Dr. Nasuha binti Yaacob
22. Dr. Siti Nur Dina binti Ahmad Kamaruddin
23. Dr. Mohd Fairudzi Afzanizam bin Salleh
24. Dr. Nur Zaireena binti Zainal
25. Dr. Norizan binti Kamarudin
26. Dr. Siti Farhana binti Md Pauzi
27. Dr. Rima Anggrena binti Dasrilsyah
28. Dr. Nurul Iftida binti Basri
29. Dr. Siti Azlina binti Abdul Karim
30. Dr. Zainab Hananah binti Abang Abdullah
31. Dr. Habibah binti Abdul Hamid
32. Dr. Zulida binti Rejali
33. Dr. Wan Norizah binti Wan Musa
34. Dr. Rohaida binti Adam
35. Dr. Kamarul Azhar bin Kamaruddin
36. Dr. Wan Rosmidah binti Wan Abbas
37. Dr. Fauziah binti Shari
38. Dr. Nor Jumizah binti Abdul Kadir
39. Dr. Norliza binti Mohd Ibrahim
40. Dr. Liyana Mastura binti Md Jalaluddin
41. Dr. Aida binti Othman
42. Dr. Nurdhania binti Azhar
43. Dr. Zulaikha binti Mohd Zahari
44. Dr. Nur Adzlinda binti Kassim
45. Dr. Nur Aini binti Mohammad Zain
46. Dr. Missdalia binti Mat Kiah
47. Dr. Anita Rina binti Ali
48. Dr. Haslinda binti Mohd Daud
49. Dr. Azalea Khairuddin
50. Dr. Hamidah binti Omar
51. Dr. Nor Fadzilah binti Mohd Yusof
52. Dr. Noor Fidak binti Samsudin
53. Dr. Mastura binti Mohd Mokhtar