KUALA LUMPUR, May 12 — Police are empowered under existing legislation to help enforce state Islamic laws, a lawyer asserted following contention over the agency’s powers to conduct “moral policing”.
Responding to the controversy over the secondment of police officers to a religious authority, Nizam Bashir said both the Police Act 1967 and the state-enacted Islamic laws catered for such a role.
These included acting on Shariah offences such as consumption of alcohol, not observing the fasting month of Ramadan, and khalwat (being in close proximity) — offences commonly considered moral policing.
“Simply put, reading the two provisions together and keeping some provisions from Shariah Acts or Enactments in mind, a police officer can apprehend a person or execute certain processes issued by the competent religious authorities,” the Shariah lawyer told Malay Mail Online when contacted.
Beyond the police’s general powers under the Police Act’s Section 20, Nizam highlighted Section 20(3)(a) and Section 20(3)(f) that state a police officer may arrest people if legally authorised to do so, as well as execute warrants “lawfully issued by any competent authority”.
Citing the Shariah Criminal Procedure (State of Selangor) Enactment 2003 as example, he contended that its definition of non-seizable and seizable offences “envisages” that police personnel can execute arrests for Shariah offences with or without warrants respectively.
“The reason why I think there was such a wide definition, because there may be times you need to search a non-Muslim premise. So when it is a search done in a non-Muslim premise, it should be a search conducted by the Royal Malaysian Police,” he suggested as he noted that the Shariah courts’ jurisdiction is limited to Muslims.
Under the 2003 law, seizable offences are those punishable by more than a year of imprisonment, while non-seizable offences would be those punishable with a jail term of less than one year or fine only.
Nizam confirmed that the 2003 state law’s wide definition does not limit which offences police could act on, possibly meaning these included moral offences such as khalwat.
“In reality, I think members of the Royal Malaysia Police don’t play that wide a role as I think they are giving due deference to the state religious authorities to perform the duties envisaged by the state enactments,” he said.
“But at the same time, we have to think of what is an appropriate legal framework that best demarcates each agency’s responsibilities as per the Federal Constitution.”
Nizam added, however, that the constitutionality of the police force’s enforcement of state Islamic laws has yet to be tested in court.
Under the Federal Constitution, the Ninth Schedule outlines the matters within the federal government’s and state governments’ separate jurisdictions, with the police falling under List I or the federal list and Islamic laws falling under List II or the state list.
Lawyer Amer Hamzah Arshad argued that the police’s involvement in enforcing Shariah laws were contentious as “moral policing” is not explicitly listed in the Police Act.
Amer Hamzah said the police’s functions under the Police Act include maintaining law and order, preserving peace and security, preventing crime, apprehending and investigating offenders, and collecting security intelligence.
“The powers of the police is governed by the Act. So if the police does an act which is not sanctioned under the Act, it may lead to a potential issue or conflict whether the police can exercise the necessary powers of arrest, among others,” the criminal law practitioner told Malay Mail Online.
Civil liberties lawyer Andrew Khoo said there is “nothing wrong” with the police helping the Islamic authorities in their training and to improve in the name of cooperation between law enforcement agencies.
But he noted that having both religious enforcement officers and the police working together jointly may blur the operational lines that ought to separate them, and lead to confusion especially when in raids where both Muslims and non-Muslims are present.
He said the police previously argued that their participation in raids by religious bodies was meant to prevent interference with public officials carrying out their duty, but noted their presence would be construed as helping enforce religious laws — which he said they should not be doing.
“They should only be there to ensure no breach of the peace, which includes preventing Shariah officers themselves from overstepping their lines of authority,” he told Malay Mail Online, also noting that the primary enforcement of Shariah laws is by each state’s respective Islamic religious departments.
Last Monday, G25 — a pro-moderation group of retired senior civil servants — questioned if the Police Act authorises the police to enforce Shariah offences and argued that moral policing is not part of their duties under the law.
But Inspector-General of Police Tan Sri Khalid Abu Bakar said two days later that the move to place three police personnel in the Selangor Islamic Religious Department (Jais) is not meant to turn the police force into “moral police”, but is to coordinate efforts to counter the Islamic State militant movement in Malaysia.
Bukit Aman’s police management department director Datuk Seri Zulkifli Abdullah told Malay Mail Online recently that the police is empowered to enforce Shariah laws, saying that the one-year trial project with Jais will help improve the religious bodies’ professional standards in enforcement action.
Jais has in the past encountered several controversies in its enforcement, including raiding a church over the suspected proselytisation to Muslims, the seizure of copies of the al-Kitab from the Bible Society of Malaysia as well as a raid on a closed-door event involving transgenders.
The Malay Mail