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Enforcement of law on immoral conduct in Malaysia from Islamic perspective and Islamic Jurisprudence.

Enforcement of law on immoral conduct in Malaysia from Islamic perspective and Islamic Jurisprudence.

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    Khalwat raid   return presentation Khalwat raid return presentation Presentation Transcript

    • ISLAMIC LAW GROUP PRESENTATION
    • THE CRIME OF KHALWAT • Khalwat is described by Jabatan Agama as close proximity between a male or female who are not muhrim. • Section 27, of the Shariah Criminal offences(federal territories) act 1997 provides that, any- a) A man who is found together with one or more women, not being his wife or mahram; or b) A 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 of 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
    • • However, if a man and woman opened the door of the vehicle and the act was committed in public place, they will charge with a charge of committing immoral act in public place. • Section 29, of the shariah criminal offences(federal territories) act 1997 provides that anyone who engaged in immoral acts in open place/public shall be guilty of an offence and shall on conviction be liable to a fine not exceeding one thousand ringgit or to imprisonment for a term not exceeding six month or to both.
    • KHALWAT OFFENCES IN ISLAMIC LAW • The act of khalwat is not mentioned directly in the quran, however, there is a quranic evidence which indirectly discussed about khalwat, “ Nor come near to adultery for it is shameful deed and an evil, opening the road to other evils. " • Abu Hurairah reported that the Prophet Muhammad P.B.U.H said; “ No man must be alone with a woman except in the presence of her mahram. No woman shall travel except in company of a mahram. " • These hadith proves that under no circumstances woman may travel alone. The shariah strictly forbade a meeting or dating or travelling between two opposite sexes not within the prohibited degrees.
    • • The Prophet Muhammad also mentioned: “ Whoever amongst you sees an evil, he must change it with his hand; if he is unable to do so, then with his tongue; and if he is unable to do so, then with his heart and that is the weakest form of faith. "
    • NEW STATISTIC OF KHALWAT RAID
    • GOMBAK – Tangkapan membabitkan kes khalwat masih mencatatkan angka tertinggi di antara kesalahan utama jenayah syariah direkodkan Jabatan Agama Islam Selangor (Jais) pada 2011 iaitu sebanyak 1,734 kes. Pegawai Hal Ehwal Jais, Ustaz Sharom Maarof berkata, statistik itu masih dianggap besar meskipun ia mencatatkan penurunan berbanding tangkapan kes sama pada 2010. “Sebanyak 1,783 kes tangkapan dibuat pada 2010 dan kebanyakan mereka yang ditangkap khalwat berumur 20 hingga 30 tahun,” katanya pada Diskusi Isu Sosial Semasa (Diksi) Siri 3 anjuran Angkatan Belia Islam Malaysia (Abim) di sini, semalam. Menurutnya, banyak faktor yang boleh menjadi penyumbang kepada khalwat antaranya pakej bayaran murah mengikut jam yang ditawarkan hotel bajet. Beliau berkata, kesalahan lain yang sering dilakukan termasuklah berjudi di mana pada 2010, sebanyak 331 tangkapan dibuat dengan penurunan ketara dicatatkan pada 2011 apabila tangkapan yang dibuat hanya 75.
    • Statistic of Khalwat raid in Selangor in 2010 and 2011 0 200 400 600 800 1000 1200 1400 1600 1800 2000 2010 2011
    • THE CONFLICT BETWEEN KHALWAT RAID AND ETHICS IN ISLAM
    • SURAH AL- HUJURAT (49 :12) “O ye who believe, avoid suspicion as much (as possible) : for suspicion in some cases is a sin : and spy not on each other, nor speak ill of each other behind their backs. Would any of you like to eat flesh of his dead brother? Nay, you would abhor it. But fear for God for God is Oft-Returning, Most Merciful.”
    • HADITH OF THE PROPHET MUHAMMAD P.B.U.H “Abu Hurairah reported that the Messenger of Allah said, beware of suspicion , for suspicion is the worst of false tales. Do not look for other’s faults. Do not spy one another, and not practice Najsh (means to offer a high price for something in order to allure another customer who is interested in the thing). Do not be jealous of one another and not enmity against one another”
    • COMMENT : HAFIZ SALAHUDIN YUSUF Surah al-Hujurat …such suspicion about a muslim for which no apparent without any logic… Hadith …secure the honour of Muslims, since doubt without any reason, and search for defects and weaknesses is strictly prohibited… Different situation It’s logic to have a suspicion when we found that a man or a woman both visited a house or a condominium at night and leave the place after few hours.
    • SURAH AN-NUR (24: 27 -28) “ O ye who believe, enter not houses other than your own, until you have asked permission and saluted those in them: that is the best for you, in order that ye may heed (what is seemly). If you find no one in the house, enter not until permission is given to you…”
    • HADITH OF THE PROPHET MUHAMMAD P.B.U.H “Jabir (r.a) reported : I went to the Prophet and knock at the door to seek permission. He asked, “Who is there?” I said: “I”. He repeated, “I,I?!” as if he dislike it.”
    • COMMENT : ABDULLAH YUSUF ALI Surah an-Nur …discussed the principal of asking respectful permission and exchanging salutations ensures privacy the people in the house… Hadith ...teaches that at the doorstep, the visitor should disclose his identity to the host and when the host comes out, he should first offer him salam… Differrent situation Should differentiate between personal visit between friends, commercial visit by salesman and official or spot check by the authority.
    • The prohibition of entering someone’s house without salam and approval from the host is only applicable in cases of personal visit among friends or family and also commercial visit. It is not right to say that the authority such as enforcement officers and policeman cannot enter the premise in the absence of permission from the host…
    • MAQASID AS-SHARIAH AND MASLAHAH • The greatest development in the history of Islamic jurisprudence. It conceived the sociopolitical and moral order of human society. • It is an important tool for formulating the fundamental principles and cardinal values pertaining to human welfare according to the descending order of human needs. • Al-Shatibi has explained that the higher objectives of the Lawgiver (Maqasid as-Shariah) can be classified into three categories: • Essentials (al-dharurat) • Exigencies / objectives (al-hajiyyat) • Embellishments (al-tahsiniyyat)
    • ESSENTIALS (AL-DHARURAT) • These are things which are essential for the achievement of human being’s spiritual and material well being. • If these essential are missing, the result will be imbalance and major corruption in people’s lives in both this world and the next. • The essential interest consists of five elements namely: • Religion • Life • Lineage • Mind • Property
    • EXIGENCIES (AL-HAJIYYAT) • These are interests which, when fulfilled contribute to relieve hardship and difficulty and creating ease in the lives of those accountable before the Law.
    • EMBELLISHMENTS (AL-TAHSINIYYAT) • They function to enhance and complete their fulfillment, embellishments include things such as commendable habits and customs, the observance of rules of etiquette and a high moral standard.
    • • So, we can see that maqasid as-Shariah is closely related to the concept of maslahah. • Maslahah is defined as to secure benefit or to remove harm intended by the Lawgiver (Allah), not absolute benefit or harm. • Imam al-Ghazali – Maslahah originally consists of securing benefit or harm. Which relates to the five objective of the Lawgiver. He also mentioned that whatever ensures the protection of these five basic objectives is a maslahah, and whatever causes the missing of these basic things is a mafsadah. • He also stressed that the maslahah is the protection of the objectives of the Lawgiver, though it is contrary to the objectives of the people. • Eg : The suggestion by the Indonesian government to forbid her cabinet members from having polygamy is the objectives of people, but it is contrary to the objectives of the Shariah which allows polygamy in order to prevent adultery.
    • ISSUE • As-Shatibi stressed that Islamic Law neglects nothing, great or small in the realm of benefit and harm. In fact, the benefit and harm are to be assessed on the basis of which the two elements are predominant. • If the predominant effect of the action is beneficial, it is classified as a benefit, whereas if its predominant effect is harmful, it is classified as a source of harm. • This discussion also brings us to the matter of the conflict of interest which often occurs between benefit and harm. • Eg : the ruling by JAKIM which impose mandatory screening test for HIV for Muslim couple who want to get married. It may bring benefit to one person, but harm to another.
    • • So, khalwat raid falls under the principle of maslahah since its main purpose is to protect religion and lineage. • It also prevents a greater harm such as illegal pregnancies etc.
    • THE PRINCIPLE OF SADD AL-DHARA’I • Sadd al-Dhara’I is defined as blocking the means which lead to evil. (Prevention is better than cure) • This principle of blocking the means is to prohibit a permissible act when it leads to an unlawful act. • E.g. : Trading during Friday prayer is prohibited since it could lead the abandonment of Friday prayer. • Even though the act of trading is permissible but since it leads to a negative result, the act is prohibited in Islam
    • • One may argue that coupling and khalwat is not necessarily will end up with zina. However, based on the degree of near certainty (zann al-ghalib) or high probability it is obvious that the act of khalwat could lead to zina, which is prohibited in Islam. • In a simple words, the act of khalwat or immoral behavior such as coupling activity must be blocked in order to prevent zina • Based on the explanation, it is clear that khalwat raid constitute as a medium of sadd al-Dhara’I which plays a very important role in preserving the objective of maqasid as-Shariah • In this case, 2 categories of Shariah are involved, (protection of life & lineage)
    • THE PRINCIPLE OF ISTIHSAN
    • Literal: To consider something good Islamic jurisprudence: To departure from the requirement of direct evidence of a general principle in favour of custom in order to secure maslahah Ibnu al – Arabi’: Sacrificing some of implications of an evidence by way of exception insofar as the exception oppose some of these implications Hashim Kamali: Departure from a general ruling in order to avoid rigidity that might result from the literal enforcement of the law in order to avoid rigidity that might result due to special circumstances.
    • HISTORICAL EVIDENCE [Caliph ‘Umar al-Khattab] – He did not punish the offender who committed theft during famine period since the general ruling in the Quran cannot be applied during that period. The exceptional situation or the special circumstances in this discussion is closely related the principle of maqasid al- dharurriyah namely the protection of life
    • …ISSUE OF KHALWAT… [CONT.] Main purpose of khalwat raid • To protect the religion and lineage • Preventing greater harm and that is the act of zina Section 12 of Domestic Violence Act, 1994 : “Anyone who aware or suspect of the commission of the domestic violence to their neighbours, friends or relatives shall forthwith give information to the nearest authority or police officer of such domestic violence or abuse…”
    • The spying and peeping method are needed to help the needy which fall under one of the maqasid al-Shariah and that is the protection of life as how we want to help the victims of domestic violence if we don’t spying and peeping. Same goes with khalwat…
    • T H E P R O C E DUR ES U N DER T H E S YA RIAH C R I MINAL P R O C E D URE ( F E D E RAL T E R R ITO RIE S ) 1 997 [ A C T 5 60]
    • SECTION 9 : PUBLIC TO GIVE INFORMATION OF CERTAIN MATTERS • “Every person aware of the commisson of or the intention of any offence shall forthwith give information to the nearest Religious Enforcement Officer or police officer of such commission or intention” • Under this provision, we can see that the concept of ‘al- amr bil maa’ruf wa al-nahyu al-munkar’ is applicable. The right of public to give information to the authority is provided in a wide scope in which they can give the information pertaining to the commission of or the intention of any other person to commit any offence in a private place or public place including commercial premise.
    • SECTION 10 - ARREST: HOW TO MAKE AN ARREST • (1) In making an arrest the Religious Enforcement Officer, police officer or other person making the arrest shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action. • (2) If such person forcibly resists the endeavour to arrest him or attempts to evade the arrest, such officer or other person may use all means necessary to effect the arrest. • (3) Nothing in this section gives a right to cause the death of any person.
    • SECTION 11: SEARCH OF PLACE ENTERED PERSON SOUGHT TO BE ARRESTED • (1) If any person acting under a warrant of arrest, of any Religious Enforcement Officer of police officer having authority to arrest, has reason to believe that any person to be arrested has entered into or is within any place, the person residing in or in charge of such place shall, on demand of the person acting under the warrant such Religious Enforcement Officer or police officer, allow him free ingress thereto and afford all reasonable facilities for a search therein. • (2) If ingress to such place cannot be obtained under subsection(1), it shall be lawful, in any case for a person acting under a warrant and in any case in which a warrant may be issued but cannot be obtained without affording
    • the person to be arrested an opportunity to escape, for such Religious Enforcement Officer or police officer to enter such place and search therein, and, in order to effect an entrance into such place, to break open any outer or inner door or window of any place whether that of the person to be arrested or of any other person if, after notification of his authority and purpose and demand of admittance duly made, he cannot otherwise obtain admittance.
    • SECTION 12: SEARCH OF PERSONS IN PLACE SEARCHED UNDER WARRANTY • “Whenever a search for any thing is or is about to be lawfully made in any place respect of any offence, all persons found therein may be lawfully detained until the search is completed, and they may, if the thing sought is in its nature capable of being concealed upon the person, be searched for it by or in the presence of a Religious Enforcement Officer or a police officer not below the rank of Inspector.”
    • SECTION 13: POWER TO BREAK OPEN ANY PLACE FOR PURPOSE OF LIBERATION • “ Any Religious Enforcement Officer or other person authorized to make an arrest may break open any place in order to liberate himself or any other person who, having lawfully entered the place for the purpose of making an arrest, is detained therein.” • This provision seems to be in contradiction with the hadith of the Prophet Muhammad which asks Muslim to give salam three times and leave the house or premise in the absence of the permission from the host. However, it should be bear in mind that the Religious Enforcement Officers are performing their job to protect in the maqasid as-Shariah.
    • SECTION 14: NO UNNECESSARY RESTRAINT AND MODE OF SEARCHING A PERSON. • (1)The person arrested shall not be subjected to more restraint than is necessary to prevent his escape. • (2) Whenever it is necessary to cause a person to be searched, the search shall be made by a person of the same sex as the person being searched with strict regard to decency.
    • SECTION 15: SEARCH OF PERSONS ARRESTED • (1) Whenever a person is arrested: (a)by a Religious Enforcement Officer or police officer under a warrant which does not provide for the taking of bail or under a warrant which provides for the taking of bail but the person arrested cannot furnish bail; or (b)without warrant and the person arrested is unable to furnish bail, the Religious Enforcement Officer or police officer making the arrest may search person and seize all articles other than the necessary wearing apparel found upon him and place them in safe custody
    • • and any of such articles which there is reason to believe were used in committing the offence may be detained until his discharge or acquittal. • (2)The list of all articles seized under subsection(1) shall be prepared by the officer making the arrest and shall be signed by him.
    • S 17, Search of persons for name and address • “Every person lawfully in custody, who by reason of incapacity • from intoxication, illness, mental disorder or infancy is unable to • give a reasonable account of himself, may be searched for the • purpose of ascertaining his name and place of residence” S 18, Arrest without warrant • Without prejudice to the provisions of any other written law, any Religious Enforcement Officer, police officer or Pegawai Masjid may, without an order from a Judge and without a warrant, arrest— • (a)any person who has been concerned in any seizable offence in the Federal Territories or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists that he has been so concerned; • (b)any person who has committed or attempted to commit in his presence any offence involving a breach of the peace; • (c)any person against whom a warrant issued under this Act is still in force, although such warrant is not in his possession.
    • 20. A Pegawai Masjid making an arrest without a warrant: • Without unnecessary delay hand over the person so arrested to the nearest Religious Enforcement Officer or police officer or, in the absence of such officer, take such person to the nearest police station, and a Religious Enforcement Officer or police officer shall re- arrest every person so arrested. 21. Pursuit of offenders • For the purpose of arresting any person whom he has power to arrest without a warrant under this Act, a police officer may pursue such person in any part of Malaysia.
    • 22. How person arrested is to be dealt with and detention for more than twenty-four hours • (1) A Religious Enforcement Officer or police officer making an arrest without a warrant under this Act shall without unnecessary delay and subject to the provisions of this Act as to bail or previous release, take or send the person arrested before a Judge of a Syariah Subordinate Court. • (2) No Religious Enforcement Officer or police officer shall detain in custody a person arrested without a warrant for a longer period than is reasonable under all the circumstances of the case. • (3) Such period shall not exceed twenty-four hours, exclusive of the time necessary for the journey from the place of arrest to the Court. • (4) When the person arrested is brought before the Court, the Court shall immediately hear the charge against him or adjourn the case. • (5) If the case against the accused is adjourned, the accused shall, unless he is released on bail, be remanded in prison or police custody under a remand warrant issued by a Judge in Form 1 of the Second Schedule
    • 23. Release of person arrested • No person who has been arrested by a Religious Enforcement Officer or police officer under this Act shall be released except on bond or bail or under the order in writing of a Judge or Chief Religious Enforcement Officer or of a police officer not below the rank of Inspector. 24. Offence committed in the presence of a Judge • When any offence is committed in the presence of a Judge within the local limits of his jurisdiction, he may himself arrest or authorize any person to arrest the offender and may thereupon, subject to the provisions of this Act as to bail, commit the offender to custody.
    • SUGGESTIONS TO IMPROVE KHALWAT RAIDS • Operation at commercial premises should be continued. Operation must also be performed at open places. • Operation at public building can only be performed in the presence of information • Enforcement officers must consist of male and female officers. • Enforcement officer should allow ample time to the arrested couple to dress up properly.