Published in The Malay Mail.
APRIL 10 — The Centre for Human Rights Research and Advocacy (Centhra), together with the Concerned Lawyers for Justice (CLJ), follow with great concern the on-going debate and public outcry pertaining to the raid by The Federal Territories Islamic Department (JAWI) on the transgender community dinner function, dubbed as “transgender beauty pageant,” said to have been held at an upscale hotel in the city centre on the night of April 3, 2016.
While we are unclear of the full story behind the said incident save as to which that were reported and published by news-media of various portals, including the video uploaded by a certain lawyer who was said to be representing the transgender community involved — we believe, although we could not confirm, that the raid, and the arrest if at all affected, were in all likelihood made pursuant to purported offence(s) under the Syariah Criminal Offences (Federal Territories) Act 1997 (for brevity, “Scoa”).
We note that some news portals had even reported that the raid and arrest were made pursuant to a purported offence under section 9 of the Scoa, namely for contempt or defiance of the command of the Yang di-Pertuan Agong as the Head of the religion of Islam, the Majlis or the Mufti, expressed or given by way of fatwa, that if found guilty is punishable to a fine not exceeding three thousand ringgit or two years imprisonment or both.
This, therefore, falls squarely within the category of “seizable offence” defined under section 2 of the Syariah Criminal Procedure (Federal Territories) Act 1997 (for brevity, “SCP”), allowing for arrests to be made without warrant.
Section 18 of the SCP reads as follows:
“[A]ny Religious Enforcement Officer … or Pegawai Masjid … may, without an order from a Judge and without a warrant, arrest 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.”
It must also be appreciated, the fact that the function was a closed-door event does not preclude the Religious Enforcement Officer from the authority to enter into the premises in which the offence is suspected to have been committed. In fact, section 11 of the SCP clearly spells the duty of the person in charge of the premises to allow free ingress to the Religious Enforcement Officer, and to afford reasonable facilities so as to allow the raid to take effect.
Having watched the short 3:04 video recording of the fracas said to occur following the raid, we must commend the officers of JAWI for having acted very professionally and with dignity, in the face of such unwarranted and uncalled for intimidations and harassments by those in attendance of the said event, particularly by the lawyer who was seen to have shouted ferociously and arrogantly against the Religious Enforcement Authorities who were merely attempting to carry out their duties, within the lawful parameters, and as provided for, under the law.
In which regard, we would like to remind all practising lawyers that an advocate and solicitor is duty bound, even in representing clients and carrying out duties in defence of a suspected offender, to uphold the dignity of the profession at all times, to conduct with candour, courtesy and fairness, and to refrain from insulting or annoying attitudes, as laid down by the Legal Profession (Practice and Etiquette) Rules 1978.
One must understand and appreciate the intricacies of the duties and responsibilities borne by the authorities on matters that are considered to be within the purview of private spheres. When there exist credible complaints of wrongdoings, even when such purported wrongdoings are said to be in private spheres, there is duty to forbid such purported wrong-doings from continuing to take place any further.
While the general principle is that tajassus — i.e. spying or peeking through the affairs of people which they have kept hidden — is forbideen in Islam, we believe that this is a case falling outside of the rule of tajassus, since it was purportedly committed in a public place, notwithtanding within private event.
That being said, we must however stress that due process must be strictly complied with, and vigorously adhered to, especially and particularly having regard to the fact that it is not the business of anyone to be pervasively suspicious of wrongdoings all the time.
While we acknowledge that private sins such as those committed behind closed doors are between God and the sinners only; the State, and in fact the community as a whole, also has a duty and responsibility to enjoin good and forbid evil.
In which regard, we are reminded by the landmark pronouncement by the Court of Appeal in The Herald’s Case — declaring the significance of Article 3 of the Federal Constitution, that it imposes positive obligation on the Federation to protect, defend, promote as well as to give effect by appropriate state action, to the injunction of Islam and able to facilitate and encourage people to hold their lives according to the Islamic injunctions, spiritual and daily life.
We believe such positive obligation has thus been rightly performed by the enforcement officers of JAWI, and flowing therefrom we would like to call for all right minded Malaysians who uphold the rule of law; who affirm the sanctity and supremacy of the Federal Constitution; and who subscribe to the principle of courtesy and morality as declared in the Rukun Negara, to re-affirm our commitment to allow the necessary enforcement functionaries to carry out their duties without intimidations and harassments.
Azril Mohd Amin is the chief executive of Centre for Human Rights Research and Advocacy (CENTHRA) and Aidil Khalid is the campaign co-ordinator of Concerned Lawyers for Justice (CLJ)