There’s Someone At The Door! - Nadzarin Kuok Puthucheary & Tan ("NKPT")

Afiq Iskandar Aziz

Legal Associate
Kuala Lumpur

For some reason, a vampire requires an invitation from the host to enter a house, embodying the full spirit of trick or treat. But how about State Religious Enforcement Authorities or the Police? When they knock on your door, must you open? Do they have the legal authority to enter your house, with or without your permission?

On the eve of new year 2022, Ops Ambang Tahun Baru was swinging in full motion. It was reported that 8 couples in Sandakan and 5 people in Malacca, among others, were caught for khalwat or close proximity at budget hotels, an offence under Section 29 of the Syariah Criminal Offence (Selangor) Enactment 1995. The hot debate is whether the authorities have the power to enter and arrest the lover birds. The short answer is, yes.

Let’s take a look at the Syariah Criminal Procedure (State of Selangor) Enactment. The general rule is stated in Section 11(1), that if the authorities possess an arrest warrant to arrest a person who may be suspected of committing a khalwat offence, you must allow them to enter the premises to effect that arrest.

However, Section 11(2) provides the authorities with power to enter and arrest someone suspected of the khalwat even without a warrant if the authorities reasonably believe that obtaining such a warrant may result in the person suspected of committing the khalwat offence escaping. If you resist the demand to open the door, the authorities can “break open any outer or inner door or window of any place” where the person to be arrested is believed to be in.

Be that as it may, as applicable in any arrest situation, your rights under Article 5 of the Federal Constitution remains firm – you have a right to contact your lawyer or to choose from suggested a list of Syarie lawyers to represent you.

But where is the line drawn in terms of one’s right to privacy? Quoting Datuk Seri Mujahid Yusof Rawa, the then Minister of Religious Affairs said in October 2018 that enforcement against morality must be enforced with care and diligence and that private affairs in private space which are NOT reported to the SRA are out of the SRA’s hands.

Another point of contention is this – Islamic law only applies to Muslims but what if the khalwat act involved a Muslim and a non-Muslim?

It is trite law that the Syariah Court has no jurisdiction over non-Muslims. Therefore, while a Muslim caught for khalwat may be charged under Section 29, the same is not applicable to a non-Muslim. There is a clear demarcation of jurisdictions set out under Article 121(1A) of the Federal Constitution and as seen in the case of Syarie Prosecutor v Muhaizad bin Ahmad Mustapha [2010] SHLR 179 where the Muslim offender was charged under Section 29, while no charge for proffered against his non-Muslim lover.

Notwithstanding all the above, it is interesting to note that these enforcement operations tend to occur at budget hotels rather than established hotels or gated residential communities. Perhaps this is a discussion for another day.

So, when the authorities knock on your door / attempt to break it down, be sure to have a lawyer friend you can contact immediately who would be able to advice you if the authorities are acting / acted within their powers or exceeded it.

However, if it is a vampire, simply wait until sunrise (not a legal advice).

About the Author

Afiq Iskandar is a Legal Associate of the firm. He graduated from MARA University of Technology, Malaysia. Afiq has multiple interests in life beyond reading law viz. sports, film, music and poetry. He believes that art, in whatever form they may be, is a necessity of life.