Monday, December 12, 2005

The Karnival, Khalwat & Your Rights

I spend today at my company's final Karnival for the year in Shah Alam. It was not as hot as I imagined, in fact it rained and my sneakers got wet in a slight drizzle while walking to to the shuttle bus.

There was various activities at my booth, the most interesting of course was getting a shoulder massage from this traditional Malay masseuse. For a small lady, she sure has really strong hands! I swear that lady has could crack walnuts with just her fingers.

While I was having dinner with my colleagues in the cafeteria, the topic of interest was of course Khalwat. Recent reports in the Malay print press of one of my managers accused of Khalwat had many inaccuracies in its report. What was worst, was the bad intention of how certain words were phrased. Anyway, whether she's guilty or not, is matter for the Syariah court to decide.

The topic of discussion wasn't whether she was guilty or not, but the definition of Khalwat. For non-Muslims, this isn't a major concern but for Muslim, it's an ambigous syariah law.

I decided to dig up some information on the internet and the Women's Aid Organization's website provided a pretty good description as below:

Caught in Close Proximity for "Immoral" Acts (Khalwat)

Siti* is sixteen. She recently heard from her classmates about a Muslim friend who was caught for Khalwat with her boyfriend. There were speculations about them having to get married because of the incident. This brought about a lot of discussions about what activities are allowed. Some thought that going to the cinema is not allowed, and some were of the opinion that only being in a confined bedroom is not allowed. Siti has a non-Muslim boyfriend, and she was not sure if she could be caught for Khalwat if she was in the company of him, and if so, in what circumstances?

The conditions for Khalwat is provided under the Syariah Criminal Provisions Act, and the circumstances differ from state to state. Generally, as provided by the Syariah Criminal Provisions Act (Federal Territories), Section 27, it entails:

"Any man who is found together with one or more women, not being his wife or mahram; or any woman who is found together with one or more men, not being her husband or mahram, in any secluded place or in a house or room under circumstances which may give rise to suspicion that they were engaged in immoral acts shall be guilty for an offence and shall on conviction be liable to a fine not exceeding three thousand ringgit or to imprisonment for a term not exceeding two years or to both."

This means that if you are with a man or woman who is not your legal spouse in a secluded area or confined place, being engaged in "immoral" activity, you can be caught for Khalwat. If convicted, you can be subjected to a fine, or be imprisoned or both. This only applies if you are a Muslim. In the case of Siti, if she and her boyfriend are caught for Khalwat her boyfriend will be released, as he is not subjected to the Syariah Law.

Who has the authority of enforcement?

Enforcement officer from the Unit Penguatkuasaan Pejabat Agama (The Enforcement Unit of the Religious Office)
Religious officer or public officer, in example the police.
Nazir and Imam if the Religious Office is geographically inconvenient due to distance.
There can be no citizen's arrest made for Khalwat. However, the public can make a formal complaint to the Religious Office if they have any suspicion of Khalwat, much like the way a member of the public can make a police report if they have any suspicion of robbery or abuse.

There will be a minimum of four persons in each enforcement unit because of the stipulation of four male Muslim witnesses for crimes under the Syariah Law.

What happens when you are caught for Khalwat?

If you are in a confined place, the enforcement officers will ask to be let in. If you refuse, they will wait outside until the both of you come out. They will also guard all available exits and windows to prevent escape.
Once you come out, or if you are in an open place, the enforcement officers will explain the reasons for them being there.
Ask for their credentials. The credentials should have the words "Unit Penguatkuasaan Pejabat Agama" on them, unless the officers are members of the police force.
Here, you can explain to them why you were in that place and what you were doing, and that you were not engaged in any "immoral" acts.
If the enforcement officers are not satisfied with your answers, they will take you to the Religious Office.
If either one of you are underaged (below 16), the underaged person will be surrendered to the police and his/her parents will be contacted. To be released, your parents will have to provide bail (jamin mulut) where you will need to present yourself at the police station or court at a specific date. The case will then be referred to the Welfare Department.
At the Religious Office, you will be investigated and personal details such as information about your marital status, IC number etc. will be taken. You have a right not to reveal anything about the incident of arrest at this point. You can enforce your right to silence and request for your lawyer to be there. It is also important to note that anything you say at this point cannot be used as evidence against you in court.
You will then be taken to the police station for police bail, and then to the Syariah Court where the charge will be read. The Court will then set conditions for the bail. After which the prosecutor will take action.
If there is no prima facie case, then the prosecutor will send you a letter to this effect. If there is a case, the prosecutor will then conduct investigations and the enforcement officers will act as witnesses.
However, if the incident of arrest is not serious, you will be asked if you have repented (insaf) before prosecution. If yes, they may drop the charges and request that you attend counselling sessions at the Religious Office. If not, then the prosecution process will continue.
If found guilty, you will be fined for a maximum of RM3,000.00 and may be sentenced to jail.
You cannot be forced to marry as a result of the arrest. For further information, contact your nearest Religious Office.

*Name changed to protect WAO's client's confidentiality.

Prepared by Rozana Isa and Jaclyn Kee
Women's Aid Organisation - 20 Years of Service to Women and Children

Fortnightly Column by WAO on Sunday Mail (Reprinted with permission from Sunday Mail)

Now notice the part in bold I highlighted, at the table I was sitting was also a former police officer who told us some pretty interesting insides into how the investigation are carried out. So, out of curiousity, we asked him what can we do if we were caught in close proximity with someone?

He said, normally, the religous authorities would bring along an Inspector for the raid, as they do not have the arresting powers of the police. However, the enforcement officer and the police does not have the right to smash down the door and drag you out. That's why they always knock and ask for your permission to be let in. If you ever find yourself caught in this situation, don't answer the door.

While the police and religous authorities can wait for you to come out, they can't detain you and prevent you from leaving the premises. So his suggestion was simple, ask the guy to leave the house and go of to work or whatever. The other party in the house just stays put. By the time the police does actually get a warrant, one of the party would have left the premises already.

However, the religous authories would listen to your explanation of why both of you are together. If you have a reasonable explanation, it's accepted.

Most people caught for Khalwat admit a guilty just to get over the embarassing fact that it actually happened. If they had to go through a length trial, the authorities would have to bring out their investigation papers with details of how often both parties have met. Not something you want your private life to be blown up for everyone to know.

Pity isn't it? Sometimes, admitting guilt is the right thing to do.

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