Tuesday, May 17, 2005

If no morality police who shall police immoral acts?

If no morality police who shall police immoral acts?

The issue of arrest of few muslims including one actress Jeslina Hashim has attracted many comments . It has also sparked debates and controversies. As usual the issue divides people into two separate groups. One supports JAWI. The other condemns it. Looking at this issue from legal perspective may assist us in making our own judgment as to whether what have been done by JAWI is justified and defensible.

It is not denied, as far as I notice from the newspaper reports, that the enforcement officers of JAWI are legally empowered to enforce the law entrusted to them. The relevant law i.e the Shariah Offences ( Federal Territories ) Act 1997 ( Act 559 ) empowers the JAWI to enforce the provisions contained therein. The Act was prepared by Attorney General’s Department and later passed by Parliament. It contains inter alia the provisions on criminal offences. One of the offences punishable under the Act is relating to moral indecency in public under section 23 of the Act. The law is only applicable to Muslims who commit an offence in Federal Territory. The Non Muslims are exempted.
Apart from the Act there is also a syariah criminal procedure empowering the JAWI enforcement officers to carry out raids and if necessary make an arrest of any Muslim reasonably suspected to have committed an offence under the Act. In carrying out this statutory duty they are not liable to be prosecuted in any court of law so long they have done their job within the parameters of law and in accordance with the stipulated procedures.
Looking at the facts of this case there is no doubt that the JAWI enforcement officers have done their duty in accordance with law. There was no illegal practices committed by them .In other words it was a legal arrest. All the prescribed procedures have been complied with . They arrested the Muslims who had committed an offence under the Act. The offence was committed in the Federal Territory . It was JAWI who did the arrest. They were legally empowered to do so. The Act gives them the power . The Parliament passed the Act. Two third of MPs , at that time the law was passed, were from the ruling party. Some of them were even non Muslims MPs. The law that they passed endorses the existence of morality police.
How about the alleged act of JAWI officers in refusing the offender to go to toilet? That was the main complaint . Even if the allegation is true that does not necessarily affect the validity or legality of the arrest. What was alleged compared to what had happened to reformists’ activists, ISA victims who were arrested by the police is incomparable. The way police violently reacted towards BA supporters attending Ceramah was more abusive than what was alleged against the JAWI’s officers.. . Nevertheless if the allegation is true, JAWI deserves to be criticized .In fact JAWI should not hide let alone condone such unwarranted or overzealous act by its officers if it is proven true. Admission of guilt is a virtue to be manifested rather than concealed.
However such criticism should not deviate us from the real issue that is the commission of vice activities by Muslims in Islam Hadhari’s land ( read Boleh land ) and the unjustified attempt by certain groups to interfere JAWI from carrying out their duties. If JAWI , being the proper statutory body to curb immoral activities committed by Muslims is not permitted or hindered from carrying out their duty who else has such power under the relevant Act. If Jawi does not do their job to whom such duty ought to be entrusted.. In carrying out its sacrosanct duty JAWI should be encouraged and if possible assisted and not condemned . If JAWI is not permitted to be a morality police who shall police the morality of immoral muslims. The Cabinet ? Don’t they the one who endorse the establishment of pubs by licensing them.
As usual those who have been arrested and detained should be prosecuted so that their offences may be proved in Syariah court. The law gives the power to prosecute to the Chief Pendakwa Syarie. He alone has the right and discretion to or not to prosecute. By virtue of Article 145 ( 3 ) of the Federal Constitution the Attorney General being the Public Prosecutor in this country has no locus standi to intervene any prosecution of criminal offence in Syariah court. The AG’s purview is only in civil court. The Cabinet has no say in any prosecutorial task. Even the Prime Minister has no business in any criminal prosecution either in civil court or syariah court.
If there is element of truth of the report which say that the Cabinets has instructed to halt the prosecutions of Jeslina such an instruction was absolutely unjustified in law. It is legally wrong for Cabinet to do so. It is an abuse of power. It may tantamount to corruption ( as happened to Anwar ). In short it is a criminal offence. The police has to do investigation to all the Cabinet members. If the investigation confirms the truth of the allegation, all the Cabinet members should be brought to book. Let them face the music and let us be reminded that absolute power corrupts absolutely.
- HM