First Published: 4:08pm, Mar 18, 2014
Last Updated: 4:08pm, Mar 18, 2014
GEORGE TOWN (Mar 18): A Syariah Court of Appeal today set aside a preliminary objection by the prosecution against a Catholic Indonesian woman who was sentenced for khalwat (close proximity) in February 2012.
Reflexologist Halimah (no last name) heaved a small sigh of relief when she learnt that the panel of judges decided on the objection but is uncertain if she would be able to attend her daughter's wedding in May.
The 42-year-old is appealing to quash the conviction under Section 27(b) of the Criminal Offences of Penang Enactment 1996 which required her to serve a 14-day jail sentence and pay the RM3,000 fine.
However, Halimah, who was unrepresented when the charge was read out and instantly sentenced, posted RM3,000 bail pending a stay on decision while applying for leave to appeal to High Court, said her lawyer Wan Faridulhadi Mohd Yusoff.
He said as a result of Halimah's timid demeanour and illiteracy, she allegedly 'froze' when asked to prove her case in the Syariah Lower Court on Feb 28, 2012.
"She was allegedly overcome with fear when asked to state her plea after being charged. When she was brought to the lower court, she told me she did not understand what was being said. On top of that, she was unrepresented.
"After the court officer read out the charge sheet to her, she admitted to the facts of the case. However, the officer did not read out the part that her religion was written as Islam.
"So, she said yes to the charge sheet without realising she said yes to the religion. She told me she was afraid and did not understand what was being said," he said.
At about 11.40am on Dec 8, 2011, Halimah was caught by six Penang Islamic Religious Department (Jaip) enforcement officers while she was attending to a non-Muslim customer at a reflexology centre at Jalan Seang Tek.
The mother of four from Bandung, Indonesia said although her mother was Muslim and her father was Catholic, she never practised either religion but her children were christened in church.
"Later, when Halimah's case was heard in the Syariah High Court on Sept 9, 2012, the judge upheld the lower court's decision.
“This, despite us submitting her Baptism record, her official family charter showing proof of their faith and a confirmation letter from the Indonesian consulate that she is not a Muslim during the case in High Court.
"All these documents were officially verified by the Indonesian consulate," he said.
Wan Faridulhadi said the High Court's decision was based on Halimah's failure to respond when asked how she performs her Christian prayers and to specify her Christian denomination.
In what seems like the first known case involving an alleged non-Muslim who was sentenced for khalwat (close proximity), Wan Faridulhadi submitted that the Syariah Court had no jurisdiction to adjudicate on a non-Muslim.
He said according to Section 74 of the Penang Islamic Religious Administration Enactment 2004, the case was considered void ab initio (void from the beginning) because Halimah is not a Muslim to begin with.
"Firstly, the court has no jurisdiction because she is not a Muslim. We also submitted that she gave in to a guilty plea under duress and during the trial, the prosecution did not proof she was a Muslim in the lower court," he said.
Today, the preliminary objections submitted by Syarie prosecutor Mohammed Zulkhairi Aziz against Halimah's stay on the conviction was set aside by Syariah Court of Appeal's three-man panel Tan Sri Ibrahim Lembut, Datuk Hussain Harun and Datuk Seri Yusup Che Teh.
When asked, Mohammed Zulkhairi said the prosecution will not drop the case because Halimah pled guilty as a `Muslim' when she was charged and failed to show how she prayed according to her faith.
Wan Faridulhadi said since the Syariah Court of Appeal sits again on May 13 in Penang, he would seek to fix the appeal on that day.
Meanwhile, due to the magnitude of the case and Halimah's predicament, Penang Bar Council's Legal Aid Centre consultant Cecil Rajendra and Syarie Ahmad Munawir Abdul Aziz held watching briefs for the establishment.
Cecil said the case was brought to the centre's attention by Halimah's employer Josephine Ong who wanted to ensure her staff received justice.
Ong also lodged a police report last year for Halimah, claiming that the latter was forced to making a confession during the lower court trial.
"The case is a travesty of justice because it violated the rights of a person who was a migrant worker. She is a non-Muslim. The records show she is not Muslim.
“This is the first case to our knowledge where a non-Muslim was being tried for khalwat. This case should have been void ab initio,” Cecil said.
He said the Bar Council is involved because it was a public interest case affecting an immigrant who was terrified when detained, interrogated, charged and sentenced.
He added that if the case was thrown out eventually, there might be a consideration to sue the court for wrongful prosecution of a migrant worker.
"She is a therapist ... not an Indonesian ‘China doll'. She has been waiting for justice since 2011. Is this how we treat a migrant worker?" he said.
.jpg)
