ISLAMIC LAW GROUP PRESENTATION

THE CRIME OF KHALWAT

• Khalwat is described by Jabatan Agama as close proximitybetween 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, notbeing his wife or mahram; or

b) A woman who is found together with one or more men, notbeing her husband or mahram,

In any secluded place or in a house or room undercircumstances which may give rise to suspicion that they wereengaged in immoral acts shall be guilty of an offence and shallon conviction be liable to a fine not exceeding three thousandringgit or to imprisonment for a term not exceeding two years orto both

• However, if a man and woman opened the door of thevehicle and the act was committed in public place, they willcharge with a charge of committing immoral act in publicplace.

• Section 29, of the shariah criminal offences(federal territories)act 1997 provides that anyone who engaged in immoral actsin open place/public shall be guilty of an offence and shall onconviction be liable to a fine not exceeding one thousandringgit or to imprisonment for a term not exceeding six monthor 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 discussedabout 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 ofher mahram. No woman shall travel except in company of amahram. "

• These hadith proves that under no circumstances woman maytravel alone. The shariah strictly forbade a meeting or dating ortravelling between two opposite sexes not within the prohibiteddegrees.

• 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

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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 nightand 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 askingrespectful permission andexchanging salutations ensuresprivacy the people in the house…

Hadith

...teaches that at the doorstep, thevisitor should disclose his identity tothe host and when the host comesout, 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 theLawgiver (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 theLawgiver. 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 theobjectives of people, but it is contrary to the objectives ofthe 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 notnecessarily will end up with zina. However, based on thedegree of near certainty (zann al-ghalib) or highprobability it is obvious that the act of khalwat couldlead to zina, which is prohibited in Islam.

• In a simple words, the act of khalwat or immoralbehavior such as coupling activity must be blocked inorder to prevent zina

• Based on the explanation, it is clear that khalwat raidconstitute as a medium of sadd al-Dhara’I which plays avery important role in preserving the objective ofmaqasid 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 therequirement of direct evidence of a general principlein favour of custom in order to secure maslahah

Ibnu al – Arabi’: Sacrificing some of implications of anevidence by way of exception insofar as theexception oppose some of these implications

Hashim Kamali: Departure from a general ruling inorder to avoid rigidity that might result from the literalenforcement of the law in order to avoid rigidity thatmight 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 D U R E S U N D E R T H E S YA R I A H C R I M I N A L

P R O C E D U R E ( F E D E R A L T E R R I T O R I E S ) 1 9 9 7 [ A C T

5 6 0 ]

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-fourhours

• (1) A Religious Enforcement Officer or police officer making an arrestwithout a warrant under this Act shall without unnecessary delayand subject to the provisions of this Act as to bail or previous release,take or send the person arrested before a Judge of a SyariahSubordinate Court.

• (2) No Religious Enforcement Officer or police officer shall detain incustody a person arrested without a warrant for a longer periodthan is reasonable under all the circumstances of the case.

• (3) Such period shall not exceed twenty-four hours, exclusive of thetime necessary for the journey from the place of arrest to the Court.

• (4) When the person arrested is brought before the Court, the Courtshall 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 policecustody under a remand warrant issued by a Judge in Form 1 of theSecond 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.