Indonesian Catholic woman’s khalwat case shows anomalies in Shariah court system
An Indonesian Catholic woman is in a bind after being found guilty of committing 'khalwat' (close proximity) by the Penang Shariah court two years ago.
Despite not being a Muslim, Halimah, 42, was charged and convicted in the Shariah court, and now cannot get her case quashed due a lack of such provision in the state's Shariah law.
Lawyer and Penang Legal Aid consultant, Cecil Rajendra, said that Halimah can only appeal to the court against her sentence but not to have her case quashed.
Describing her situation as being "trapped in a system that is unjust", Rajendra said Halimah should not have been charged before a Shariah judge in the first place.
"Halimah had to go to the shariah court to sign an affidavit in reply to the prosecution's appeal.
"Why make her sign an affidavit when the court does not even have jurisdiction over her?” he told The Malaysian Insider.
"There is no case in the first place... I think the whole thing is a farce. She is trapped in a system that is unjust... it is without a shred of a doubt that she is a non-Muslim," he added.
Rajendra held a watching brief on the case for the Penang Bar Council's Legal Aid Centre due to public interest in the case.
He said checks with the Shariah courts revealed that there were no provisions that allow cases to be quashed.
The veteran lawyer argued that although the Shariah lawyer would have to follow procedure, it is "nonsensical to just go with it".
"Would you submit to the military court which has no jurisdiction over you?" – Cecil Rajendra, lawyer holding watching brief for Halimah.
"There is no case against Halimah. The case should not have gone to court in the first place.
"Would you submit to the military court which has no jurisdiction over you?" Cecil asked.
It was Halimah's right to have the case quashed, he added.
Rajendra said he had considered taking the prosecution to court for malicious prosecution, but it would have to be done in civil court as there is no such procedure in the Shariah court.
He also said that Shariah lawyers were not pleased that he was meddling in the case but insisted that he wanted the Shariah court to adhere to Section 74 of the Penang Islamic Religious Administration Enactment 2004, which states that the Shariah court has no jurisdiction over non-Muslims.
"I am not against the Shariah court but I am questioning the system.
"I am also in support of Section 74 of the enactment. Just apply the law," he said.
Rajendra also said that when Halimah needed to post bail, she had to get a Muslim to do it.
He said that the Catholic Lawyers Association has also taken an interest in Halimah's case.
Halimah, a mother of four from Bandung, was working as a reflexologist at an outlet on Jalan Siang Tek in George Town, when she was arrested by officers from the Penang Islamic Religious Department (Jaipp) on December 8, 2011, while massaging a customer.
She was questioned on the spot for about two hours before being taken to Jaipp's office in Seberang Prai where she was further interrogated and subsequently released on a RM3,000 bail.
On May 15, 2012, Halimah was charged with committing close proximity under Section 27(b) of the Shariah Criminal Offences Enactment (Penang) at the Penang Shariah Lower Court.
She pleaded guilty and was sentenced to 14 days jail and RM3,000 fine.
On December 3 the same year, Halimah's case was judicially reviewed by the Shariah court with a stay on proceedings granted pending her appeal.
On September 9, 2013 year, the Shariah High Court upheld the lower court's decision, prompting Halimah’s lawyer to take the case to the Shariah Appeals Court.
Her lawyer, Wan Faridulhadi Mohd Yusoff, had submitted before the appeals court judge that under Section 74 of enactment, the Shariah court has no jurisdiction to prosecute her because she is a Christian.
The defence also supplied to the court various documents to support her claim, including a baptism certificate verifying that Halimah was baptised a Christian in Medan on June 19, 1982, her family charter which shows that her family members are also Christians, and a letter from the Consulate-General of Indonesia in Penang confirming that Halimah is a Catholic.
Wan Faridulhadi had told the court that there had been no evidence from the prosecution to show that Halimah had converted to Islam.
He said Halimah, who is illiterate, pleaded guilty to the charge under duress.
Last month, the Shariah Court of Appeals dismissed the prosecution's preliminary objection against Halimah's application of appeal against the conviction.
When contacted last week, Wan Faridulhadi said the prosecution had said Halimah's appeal against the conviction was not according to procedure, as she could only appeal against the verdict.
A date for the next hearing has yet to be fixed.
Wan Faridulhadi also said he has no problems with Cecil’s interest in the case.
"As far as I am concerned, anyone can intervene (in this case) as long as they have an interest in it. I don't mind." – April 21, 2014.
