Syariah conviction in Penang of Indonesian Christian throws up jurisdictional limbo

Mar 28, 2014

GEORGE TOWN: An Indonesian Christian is now fighting her conviction for “khalwat” (close proximity) under local syariah laws, but lawyers are outraged that a non-Muslim was even prosecuted under the Islamic legal system.

Malaysia operates a dual-track legal system: civil law that applies to all residents of the country, and a syariah law that is exclusively used for Muslims.

“This is a travesty of the law, the first such case where a Christian woman is charged for khalwat in syariah court; it should have been thrown out of court immediately upon proof of her religion,” said Penang Legal Aid Centre consultant Cecil Rajendra.

Cecil and Sharie lawyer Ahmad Munawir Abdul Aziz were also present on March 18 to hold a watching brief for the Indonesian Christian.

According to the facts of the case, Halimah, 42, was charged with close proximity with a person of the opposite sex who is not her spouse or relative at a reflexology centre along Jalan Seang Teik at 11.40am on December 8, 2011.

Indonesians occasionally have only single names.

She then pleaded guilty to the charge before the Penang Syariah Court on May 15, 2012.

She was convicted of close proximity by the lower Syariah Court under Section 27 (b) of the Penang Sharia Criminal Offences Enactment and fined RM3,000 and sentenced to 14 days’ jail.

The court allowed her application for a stay of execution pending her appeal against the conviction and she is now out on RM3,000 bail.

It is unclear why she was charged, but it is believed to be due to her name, Halimah, which is commonly a Malay name here. Malays are legally bound to be Muslim, and it is suspected that prosecutors assumed she was Muslim because of that.

Her lawyer, Wan Faridulhadi Mohd Yusoff, now says that she was not represented when she was first charged and simply agreed to facts presented by the prosecutors as she did not understand the proceedings.

He also insisted that Halimah, an illiterate, could not have known that prosecutors listed her as Muslim in the charge sheet, as this was not read out to her.

Wan Faridulhadi said that when Halimah was charged, only her name, time and date of the alleged offence as well as the applicable law was read out.

He also alleges that she was intimidated into making the admission, as she did not understand the consequences.

Her employer, a non-Muslim, also did not understand syariah laws, or the implications of what Halimah was accused of then, until she was convicted and sentenced.

The employer then hired Wan Faridulhadi for Halimah, and approached the Penang Legal Aid Centre for help.

Beyond the alleged irregularities, Wan Faridulhadi points out that Halimah should never have been charged to begin with.

“We have documentation to prove that she’s a Christian and that this case should be thrown out immediately,” Wan Faridulhadi said, after filing for leave to quash her conviction with the Penang Syariah Court of Appeal today.

The documents submitted in its application for leave included her baptism certificate, a confirmation from the Indonesian Embassy that she’s a Christian and also a family charter that showed all her family members are also Christians.

The application was made under Section 74 of Penang Islamic Religious Administration Enactment 2004 which states that the court has no jurisdiction over non-Muslims.

Prosecutors earlier sought to object to the application, but the three-man panel led by Tan Sri Ibrahim Lembut dismissed them on the basis that they were mere technicalities and ordered the prosecution to submit an affidavit in reply to Halimah’s application.

Halimah, who has worked here as a reflexologist for four years, is now unable to return to Indonesia as long as her case in Shariah court is still pending.

“My eldest daughter is getting married in May but because of this case, I’m not able to go back for it so she may have to cancel her wedding,” Halimah said.

She added that she hoped the case would be resolved soon so that she can carry on with her life. --The Malay Mail Online