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Can a non-Muslim get in trouble for khalwat in Malaysia?

2 months ago Arjun

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This article is for general informational purposes only and is not meant to be used or construed as legal advice in any manner whatsoever. All articles have been scrutinized by a practicing lawyer to ensure accuracy.

Even if we don’t know the religious or legal technicalities behind it, we’d know from the occasional news reports that Khalwat involves unmarried Muslim couples getting in trouble with the religious authorities after being caught in compromising situations. A recent example of this is the report of a couple in Kedah caught for khalwat when the local religious authorities conducted raids throughout the state.

While we’ll go through the legal technicalities of what Khalwat actually is later in the article, we’ll first answer a question that we get asked quite a fair bit – if an unmarried Muslim and a non-Muslim were caught in a hotel room during a raid, can the non-Muslim be caught for khalwat?

And the answer to that is...

 

No, a non-muslim cannot get caught for khalwat

Yup. Basically, a non-Muslim cannot be caught for khalwat, even if the non-muslim was caught together with a muslim.

Why is this the case?

This is because khalwat falls under the jurisdiction of Syariah matters – and Syariah matters can only be dealt with in the Syariah court – and the Syariah courts only only have jurisdiction over Muslims as stated in the notes of our Federal Constitution

Notes (List II – State List) of the 9th Schedule of the Federal Constitution (in part): 

“...the constitution, organization and procedure of Syariah courts, which shall have jurisdiction only over persons professing the religion of Islam...”
You can see this being put to practice in Syariah court cases. For example, in the case of Syarie Prosecutor v Muhaizad bin Ahmad Mustapha (2010), a Muslim man and a Christian woman were caught by religious authorities on suspicion of khalwat. In the end, only the Muslim person was brought to court and convicted

However, there have also been rare situations where non-Muslims were wrongly brought to court for Khalwat. For example, a Christian woman from Indonesia was found guilty of khalwat by the Penang Syariah Court. She was later found not guilty when she appealed against the decision, as it turned out that the religious authorities mistakenly thought she was Muslim. 

So in essence, if you are a non-Muslim, you cannot get into legal trouble with the religious authorities for khalwat. 

But if you’re wondering what Khalwat actually is, we’ve dedicated the rest of the article to explain it; starting with...

 

Each state has their own khalwat laws

Image from Tes Teach

For the sake of general understanding, it can be said that Islamic laws in Malaysia are governed and enforced by state. This means that these laws (known as enactments) are created by State Assemblies (Dewan Undangan Negeri), and not the Federal Parliament.  

[READ MORE: Where do the Syariah courts get their power from?]

The difference between federal laws and state laws are as such:

  • Federal laws apply throughout Malaysia – For example, if you committed murder (a federal crime) in Johor and ran off to Perlis, the police can arrest you in Perlis and charge you in any Malaysian High Court
  • Syariah laws are applied within its respective state – For example, if the crime of khalwat is committed in Selangor, the offender(s) can only be tried in a Selangor Syariah Court.

To clarify, there aren’t exactly 14 DIFFERENT khalwat laws. It’s just that each state has their own criminal syariah offences legislation...but all of them are worded very similarly. So Johor would have the Syariah Criminal Offences (Johor) Enactment, Selangor would have the Syariah Criminal Offences (Selangor) Enactment, and so on.

 

But what is khalwat?

When it comes to criminal offences, it’s kinda like identifying a “pizza”. In order for something to be recognized as a pizza, you need the dough, sauce, and toppings. You miss out on one of the ingredients, you don’t have a pizza.

It’s the same thing with khalwat, there would be a few “ingredients” that are needed to complete the offence, and if one “ingredient” is missing…..you don’t have the offence of khalwat.

As long as there be no pineapples. Image from halalfoodexpress

So to find out the “ingredients” of khalwat...we’ll use the Selangor Syariah Criminal Offences (Selangor) Enactment 1995 as an example (since we’re sure you won’t want to read all 14 of them). This enactment states: 

“(1) Any -
(a) man who is found together with one or more women, not being his wife or wives or mahram; or
(b) woman who is found 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 are engaged in an immoral act shall be guilty of an offence and shall be liable on conviction to a fine not exceeding three thousand ringgit or to imprisonment for a term not exceeding two years or to both.”

From this, we can see there are basically 4 “ingredients” to this crime. We will discuss each one below:

Ingredient one: At least two persons of different genders must be involved.

Let’s see how this works in the three scenarios below

Scenario 1

Two men sitting in their dorm room doing an assignment. – NOT khalwat

Scenario 2

Two women hanging out in their house alone, getting their nails done. – NOT khalwat

Scenario 3

A man and a woman sitting on a couch in an apartment, just watching Netflix – POSSIBLY khalwat

In essence, those who would have to worry about khalwat are couples or any two people or more people of different genders. But as you read on, you will find out that just because a girl and guy are together it isn’t always khalwat. The ingredients must be complete.

Ingredient two: The male and female person must be caught in a secluded place

The second ingredient requires a couple to have some form of privacy. The law requires that the man and woman must have been alone in a  secluded place.

This means a couple technically can’t be caught committing khalwat if they are walking in a crowded mall, but a couple who were caught in a house or hotel room alone is at risk of being guilty for committing khalwat.

Ingredient three: The man and woman must not be husband and wife, or have a close family connection.

So, for the first ingredient we learnt that a man and a woman MUST be involved to form the offence of khalwat. This however, may bring in complications as spouses and family members could be at risk of getting into trouble with the authorities.

This is where the third ingredient comes in.

According to the enactment, it’s not khalwat if the other person is a spouse or someone with a mahram relationship. For reference, mahram is – simply put – a list of family relationships recognized in Islam

To give you a few examples to help you figure out how it would work

  •  Husband and wife = NOT khalwat
  •  Brother and sister = NOT khalwat
  •  Boyfriend and girlfriend = POSSIBLY khalwat
  •  You and a friend of the opposite gender = POSSIBLY khalwat
Ingredient four: You must get caught under suspicious circumstances.

To complete our khalwat pizza, the fourth ingredient requires a couple to be caught under suspicious circumstances. What counts as ‘suspicious circumstances’ will be determined on a case-to-case basis. For example, 

  • Boyfriend and girlfriend renting a house, and living together as a live-in couple. – VERY LIKELY khalwat
  • A man and woman alone in a house, having coffee over a business discussion. – UNLIKELY khalwat

This is to prevent two people who are together for innocent (non-sexual) purposes from getting into trouble because, at the end of the day, khalwat exists to prevent the sin of zina (pre-marital sex or adultery) from happening

 

You may need to get a Syariah lawyer

Just like with regular non-religious enforcement, there may be times when mistakes are made and/or legal procedures aren’t followed – which leads to you being accused of something you didn’t do, or have your rights infringed upon. 

Whichever the situation, just like in “regular” law, you can get a Syariah lawyer to advise or argue the case for you. The Jabatan Penghakiman Syariah Malaysia provides a list of Syariah lawyers by state through their E-syariah portal. Note: You can just select the state to view the full list

So, another question you might have is, what do you do if suddenly you get a knock on your door and you hear “Jabatan agama, tolong buka pintu”?

Well we would love to give you the answer here, but unfortunately the legalities of the religious authority’s right to enter into private property requires a bit more discussion which we’ve covered in the article below:

[READ MORE: If the religious authorities knock on your door, must you let them in?]

 

Tags:
syariah
syariah criminal offences (selangor) enactment 1995
khalwat
zina
muslim
non-muslim
federal constitution
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Arjun

I'm so woke I don't sleep


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