Responses to Proposal that non-Muslims be Punished for Khalwat

‘Punishing non-Muslims for khalwat Against Constitution’
Source: THE STAR ( Friday 4 April 2008)
PETALING JAYA: It is unconstitutional to punish non-Muslims for committing khalwat (close proximity) as there is no provision in law for it.

Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism, and Taoism president Datuk A. Vaithilingam said yesterday that Article 121(A) of the Constitution allowed for separation between the Civil and Syariah courts.

“Khalwat is not recognised (as an offence) under civil law.

“It is not wrong for non-Muslims. Syariah law is only applicable to Muslims,” he said yesterday.

He was commenting on a proposal made during a seminar on Syariah Law review for non-Muslims who commit khalwat with Muslims to also be held liable.

Syariah Court of Appeal Judge Datuk Mohd Asri Abdullah said the seminar had proposed that non-Muslims committing khalwat with Muslims be likewise sentenced, but in the civil courts.

Vaithilingam also said this was tantamount to depriving non-Muslims of their rights.

Federation of Taoist Associations Malaysia president Tan Bon Sin said in a statement it vehemently objected to the proposal, as it was an affront to the Taoist community’s way of life.

“It is an implied way of imposing Syariah law on the non-Muslim communities in Malaysia,” he said.

Malaysian Bar Council president Ambiga Sreenevasan said in a statement that the proposal is tantamount to imposing Islamic law on non-Muslims .

She said it was wrong in principle and would be an infringement of the “fundamental guarantee of freedom of religion enshrined in Article 11 of the Federal Constitution”.

“The proposal is wholly unacceptable.”

She said other proposals made during the seminar which purportedly included the imposition of stiffer penalties, and the establishment of a rehabilitation centre for Muslims convicted of various offences related to “moral and faith” were equally troubling, especially in light of the history of overzealous enforcement of khalwat and other moral policing laws in Malaysia.

“We urge the authorities to focus their attention on more pressing issues like fighting corruption rather than on the private lives of individuals,” she added.

In a statement, Sisters In Islam reiterated their objection to the current practice of moral policing by the state as it contravenes Quranic injunction laid out in various verses.

“The practice of barging into people’s houses and bedrooms in particular clearly violates an individual’s right to privacy and human dignity protected by the Quran.

“Such a practice is also not the norm in many Muslim countries,” the statement said.

Sisters In Islam called on the religious authorities to focus their resources on chasing after errant fathers who did not pay maintenance to their children and ex-wives.

“With the on-going debates on this issue among Muslims still unresolved, how then can it be extended to non-Muslims?” the statement added.


STATEMENT BY THE DIRECTOR-GENERAL OF IKIM (from IKIM website dated 3 April 2008)

I would like to refer to the article on page 3 in the Tuesday, April 3 2008 edition of The STAR in which the headlines read “Proposal to prosecute non-Muslims for khalwat”. I feel it incumbent to clarify certain matters highlighted in the aforementioned article, the contents of which are contentious to say the least.

First of all, IKIM’s objectives for the 2 day seminar held in collaboration with the Syariah Judiciary Department Malaysia (JKSM) was intended to review existing syariah laws to see if there were any laws that were redundant and also to propose a solution to some of the issues currently plaguing the syariah judiciary system in Malaysia.

The article in the STAR which reports that the seminar had proposed that non-Muslims caught committing khalwat with Muslims should also be sentenced accordingly but in the civil courts, is entirely erroneous. No such proposal was made, and therefore if what is reported in the Star as being comments allegedly made by Syariah Court of Appeal Judge, are also in error.

Conversely, it is our opinion that non-Muslims cannot fundamentally be charged under any provision in Islamic law by virtue of the fact that they do not profess the religion of Islam. In addition, to my knowledge, there is no such provision in the civil courts to charge a person for khalwat, and therefore it would be premature to assume that non-Muslims can also be subjected to the charge of khalwat in the civil courts.

I am disappointed with the article highlighting comments allegedly made by Datuk Mohd. Asri Abdullah which emphasized the banal, when in reality the more important substantive proposals having to do with laws protecting the rights of divorced women and their rights to maintenance, were ignored.

Towards the end of the article, it also alleges that there was a proposal calling “for the establishment of a rehabilitation center for those convicted of offences related to morals and faith such as prostitution and effeminate men”. To my knowledge, I have never interpreted being effeminate as an offence. But more importantly this so called proposal as reflected in the article is not representative of the proposals made during the seminar at IKIM. If indeed the learned Syariah Court of Appeal Judge made those statements, we strongly advise that it would behoove the learned Judge to be more circumspect in future.


My response:

It is good that we have a clarification from the Director-General of IKIM. He is right that non-Muslims cannot be judged under any provision of Islamic law, but it should be noted that the judge of the Syariah Appeal Court is not suggesting that non-Muslims be judged directly under some provisions of Islamic law. He is suggesting that non-Muslims be judged by the Civil court for an act that is an offense under Islamic law. That is to say, what is envisaged is a Syariah-compliant Civil court meting out punishment on non-Muslims based on Islamic legal principles.

It is also of interest to note that the Director-General uses the phrase, “it is premature to assume that non-Muslims can also be subjected to the charge of khalwat in the civil courts.” “Premature” can mean either that one should reserve judgment since what is proposed may not come to pass. On the other hand, it can also mean it is too soon to say about something that will come to pass.

I let the reader decide whether the statement is reassuring enough. In any case there seems to be no denial that the matter was raised and “If indeed the learned Syariah Court of Appeal Judge made those statements” that it is disturbing that such proposals should come from a senior judge.


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