‘CLEARER DEFINITION OF ‘KHALWAT’ NEEDED’
Based on law, even being in a car with one of the opposite sex is an offence, says Zaid
FORMER law minister Datuk Zaid Ibrahim said the special committee looking into issues concerning the enactment of syariah laws in states must address shortcomings in the definition of khalwat offences (close proximity).
He said this was needed in the wake of the case of a construction worker, who became the first khalwat offender in Terengganu to be sentenced to caning by the Syariah High Court in the state on Monday.
Zaid said there must be a more precise definition of what was needed to be established before one could be convicted of the offence.
Based on the current definition, he said, a totally innocent encounter by two individuals of the opposite sex could lead to them being prosecuted for the offence of khalwat.
“I hope Tun Zaki Azmi (who is chairing the special committee) will address this issue.
“He did a fantastic job in getting the civil court system functioning well when he was the chief justice.
“He can do the same for the syariah,” he said, adding that Zaki should also recommend that a defence counsel be present to represent those facing criminal cases under the Syariah Enactments.
He said the government must provide one for those who could not afford a defence counsel as syariah offences invariably called for harsh punishments.
“A defence lawyer can make all the difference.”
Zaid said the accused would have received a better deal if he had the services of a defence counsel and pointed out that an Islamic government must be a compassionate one.
“They should not just clamour for harsh punishments, but a system of justice that is fair. Give an accused person a lawyer.
“After all, khalwat offenders generally involve those from the poorer segments of the community. They typically plead guilty without proper advice.
“VVIPs or top politicians are seldom hauled up. Their encounters are in 6-star hotels; places that are relatively safe from prying eyes with suspicious minds.”
It was reported that syarie judge Hamidi Shafie ordered Mohd Affendi Awang to be caned four times and fined him RM3,000, in default six months’ jail, after the 42-year-old pleaded guilty to committing khalwat.
Affendi became the first person to face whipping for committing khalwat under Section 31(a) of the Syariah Criminal Offences Enactment (Takzir) (Terengganu) Amendment 2022, which came into force last Jan 1.
In giving an example, Zaid said under the law, if one was with the opposite sex in a car in an isolated place in Kelantan or Terengganu, then the conditions of khalwat are fulfilled.
“It does not matter that you were not caught having sex. Being together is enough to get you in trouble.
“If the special moral police suspect that you are about to commit an immoral act, then you will also
be arrested.
“If you are dating a girl or counselling a friend in distress and need a quiet place to chat with her, that’s khalwat.
“Suspicious minds always see things differently. If you are gay, then it’s alright. It’s not an offence.
“Only heterosexuals are targeted,” he said, pointing out that the so-called religious states had harsh sentences for mere moral offences, even as Saudi Arabia had already done away with flogging.
“However, like they say, we are more Islamic than the Saudis or Indonesians.
“They also claimed that we need harsh punishments to prevent illicit sex and cases of abandoned babies.
“However, cases of infanticide, abandoned babies and teenage pregnancies are still prevalent among the poorer Malay communities despite the harsh sentence.”