Reduce the power of religious departments

I have been following Siti Kasim’s trial for the past week and was present in court when it was revealed by a member of the Federal Territories Islamic Religious Department (Jawi) investigating team that religious authorities were allowed to conduct raids and make arrests based on suspicion alone. That they did not need a warrant prior to such activities.

Loud gasps and exclamations of shock could be heard from the public gallery at this revelation. It seemed that most of those present were unaware of this privilege given to religious authorities which have been a fact of life for many of those who have long been the target of acts of moral policing in this country.

The expressions of many of the transwomen present ranged between stoic and sadness, especially during the viewing of the video footage taken by the Jawi raid team.

Screams of panic, fear and anger could be heard replacing the music, laughter and excitement which just moments before, had been a dinner-show fundraiser. This had been a private event held to raise funds for non-government organisations working with marginalised and socially excluded groups, including transgender communities.

Many of those present that day in court have actually lived through such traumatic experiences. Some have even been charged and convicted in shariah court. A number of them have suffered from sexual abuse, harassment and assault from members of such religious enforcement teams.

Arguably, the lack of a need for a warrant within the context of moral policing reduces the need for accountability, transparency, and due process by those given the power to enforce religious laws.

Section 2 of the Syariah Criminal Procedure Code (Federal Territories) 1997 (SCPC) allows for warrantless searches and arrests to be conducted after initial investigations, and if the alleged offence carries a jail sentence of one year or longer, as provided under the Syariah Criminal Offences (Federal Territories) Act 1997 (SCO).

The alleged offence, in this case, was the act of men dressing up as women in a public space for immoral purposes. An offence which falls under Section 28 of the SCO, with a maximum fine of RM1,000 and a maximum prison sentence of one year.

This apparently provided sufficient coverage for the Jawi religious enforcement team to act the way they did on the night of April 3, 2016, as they have done countless times in the past.

I argue that if Jawi’s intentions were truly noble and done within their mandate to enforce religious laws, why did they not act to prevent the event from actually happening? After all, the month before, they had advance knowledge of the details of the fundraising dinner event. They could have warned off the organiser. Instead, they decided to go with this punitive approach.

The threshold for acting without a warrant has been set so low that it has also encouraged a culture of impunity among religious authorities which has existed for decades, making victims out of those most vulnerable and marginalised.

Unfortunately, this power is not unique to Wilayah Persekutuan (Federal Territories). A similar version of the SCPC exists in almost every single state in this country, providing powers to religious authorities to do as they see fit in the area of moral policing.

Who gave them that power? In most cases, our elected state representatives did.

Our attention is often focused on or distracted by the on-goings in Parliament but the reality is that on these issues, which has the potential to affect the lives of millions of people, especially Muslims, the power lies in the state assemblies. Religion in Malaysia is an institutionalised affair and is decentralised to the individual states to administer.

The lack of quality political representation elected at the state level will result in bad laws being passed, often related to or affects moral policing.

One example is an amendment, Section 22A, to the Mufti and Fatwa (Kedah Darul Aman) Enactment 2008 made in 2012 which states that fatwa decided by the mufti or Fatwa Committee, whether gazetted or not, cannot be challenged, appealed, reviewed, denied or questioned in any civil court or syariah court.

This amendment elevated fatwas to being absolute, above and beyond the jurisdiction of law. Unless I am mistaken, this unconstitutional law remains present to this day and has yet to be repealed.

The need for accountability extends beyond the potential impact of moral policing. Some state religious departments have annual budgets which range up to hundreds of millions sourced from public or taxpayers’ funds. The federal Department of Islamic Development Malaysia (Jakim) at one time, even wanted an RM1 billion allocation from the national budget.

For too long, religious authorities in this country have depended upon our reluctance and unwillingness to directly confront them on these issues. They have often been able to get their way.

The exasperation and frustration of the Jawi investigating officer at having to deal with someone who actually dared to question the actions of the raid team, was apparent even now, two years after the actual incident.

It should not be wrong for anyone to stand up and demand for accountability and transparency from public officials, especially when they are given so much power over our lives. They need to be checked and reined in.

We are a liberal and supposedly, moderate and progressive democracy. We are not a theocracy.

Everyone should have the courage to stand up and speak out against any form or expression of religious tyranny, especially when it is in defence of others, as Siti did. - Mkini