A Non-Muslim Cannot Be Charged With Khalwat. In 2014, One Was Anyway.

In March 2014 in Penang, an Indonesian Christian woman named Halimah was arrested, charged and convicted of khalwat in the Syariah Court.

She should never have been in that court. The Federal Constitution restricts Syariah court jurisdiction to persons professing the religion of Islam. It was reported that enforcement officers assumed she was Muslim because of her Malay-sounding name.

Politicians across the spectrum called it an abuse of power. Bukit Bendera MP Zairil Khir Johari said there was no basis for applying Syariah law to a non-Muslim. Bukit Mertajam MP Steven Sim said the religious authorities have no authority over non-Muslims and that if a non-Muslim commits an offence, the civil courts are the proper forum.

That case is the whole article in one incident. The legal position is clear. The practical position is that clarity depends on officers correctly identifying who is and is not Muslim, in the middle of a raid, at 1.30am.

1. Where the jurisdictional line comes from

Two provisions do the work.

The Ninth Schedule, State List (List II), item 1. This is the source of state power to legislate on Islamic law and personal and family law of persons professing the religion of Islam, and to constitute Syariah courts — which, in the Constitution's own words, shall have jurisdiction only over persons professing the religion of Islam.

Article 121(1A). Added by constitutional amendment in June 1988, it provides that the High Courts referred to in Article 121(1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.

What 121(1A) does and doesn't do is genuinely contested, and you should know that. The narrow reading, argued by constitutional lawyers, is that it was intended only to stop the civil courts re-hearing matters properly decided in the Syariah courts — for example a Muslim divorce — and that nothing in the Constitution makes Syariah courts equal in standing to the civil courts or removes the civil courts' supervisory role when Syariah courts act outside their boundaries. On that reading, where there are mixed questions of civil law or matters involving non-Muslims, the Syariah courts must not usurp jurisdiction.

The broader reading, which has often prevailed in practice, treats 121(1A) as creating a jurisdictional wall that leaves people caught at the boundary without an effective forum.

The US State Department's religious freedom reporting has described the 1988 amendment as introducing an ambiguity between Syariah and secular law that has not been clearly resolved. We are not going to adjudicate that here. It is a live constitutional debate in Malaysia and reasonable people, including judges, differ.

2. What khalwat actually is

Khalwat — close or intimate proximity between an unmarried man and woman who are not in a permitted relationship — is a Syariah criminal offence created by state enactments. Each state has its own criminal Syariah offences legislation, though the drafting is broadly similar across states.

Penalties vary by state. Reported figures put khalwat at up to around two years' imprisonment, a fine of about RM3,000, or both, with six months commonly cited in some states. Terengganu has used public caning for khalwat, which drew significant attention.

Because it is state law, the answer to "what happens if" depends on which state you are in. Do not assume a Selangor answer applies in Kelantan or the Federal Territories.

3. The mixed-couple raid: what actually happens

The legal position is settled. The Syariah court has no jurisdiction over non-Muslims. A Muslim caught for khalwat may be charged under the relevant state provision; the same is not applicable to a non-Muslim. Syarie Prosecutor v Muhaizad bin Ahmad Mustapha [2010] SHLR 179 is the illustration — the Muslim offender was charged, and no charge was proffered against his non-Muslim partner.

So in a mixed-couple raid:

Here is where practice and law diverge. Religious enforcement officers arriving at a hotel room or apartment do not know in advance who is Muslim. They will ask. A non-Muslim with a Malay name, or a name that reads as Muslim, is at materially higher risk of being wrongly processed — which is precisely what appears to have happened in the 2014 Penang case.

Can religious enforcement officers detain a non-Muslim? They have no jurisdiction to arrest or charge a non-Muslim for a Syariah offence. But they conduct raids accompanied by police, and a non-Muslim present at the scene can in practice be asked to identify themselves, questioned, and asked to give a statement in relation to the Muslim partner's case — potentially as a witness rather than an accused. Being questioned is not the same as being lawfully charged, and the distinction is one you may have to assert.

4. Who is actually doing the raiding

JAKIM (Jabatan Kemajuan Islam Malaysia) is federal. It is a coordinating and advisory body on Islamic affairs and does not conduct khalwat raids.

The state religious departments do the enforcement — JAIS (Selangor), JAWI (Federal Territories), JAIPP (Penang), JAIM (Melaka), JAINJ (Negeri Sembilan), and their equivalents in each state.

This matters practically: if you are dealing with a raid, the relevant body is the state department for the state you are in, not JAKIM.

On raid powers. In a 2018 Magistrates' Court trial, a JAWI investigating officer testified that religious authorities are allowed to conduct raids and make arrests based on suspicion alone, citing s.2 of the Syariah Criminal Procedure Code (Federal Territories) 1997. Reporting noted the enforcement boundaries in that section permit warrantless searches and arrests only after initial investigations, and only where the offence carries a jail sentence of one year or longer under the Syariah Criminal Offences (Federal Territories) Act 1997.

Note a trap here. The definition of "seizable offence" under Syariah procedural law and under federal criminal law are not the same. AskLegal's own earlier coverage of this topic carried a published correction on exactly that point. Do not import CPC concepts into the Syariah procedure question.

A constitutional protection that does apply. Article 5(4) of the Federal Constitution expressly provides that a person arrested for an offence triable by a Syariah court must be produced before a judge of a Syariah court without unreasonable delay and in any case within 24 hours, excluding necessary travel time.

5. The documented problems with raids

These are matters of public record and both Muslim and non-Muslim Malaysians are affected.

Married couples wrongly raided. In January 2017, Mohd Ridhuan Giman and Siti Sarah Maulad Abdullah — married for three years — were arrested for khalwat at a Kuala Lumpur budget hotel at around 1.30am by a JAWI team of seven male officers and one female officer. They showed a copy of their marriage certificate on a mobile phone; officers refused to accept it. They were taken to the religious department and released only when Mohd Ridhuan's mother produced the original certificate. They sued JAWI in February 2017, seeking an apology and compensation for injuries, wrongful detention, and the exposure of the half-dressed wife to male officers.

Institutional criticism. Sisters in Islam has argued that barging into homes and bedrooms violates the right to privacy and human dignity protected by the Qur'an, noting that khalwat raids were not carried out in the Prophet's lifetime and that the second Caliph Umar was rebuked for entering a suspect's residence. The COMANGO civil society coalition has argued that khalwat raids are often subject to abuse by religious enforcement authorities and that such invasions of privacy have in some instances resulted in fatal outcomes.

Government response, historically. After a 2005 controversy involving around 100 people detained at a Kuala Lumpur nightspot, a minister announced that religious department officials would need police approval before raids and must conduct them accompanied by police officers, on the basis that someone must be accountable for what happens during a raid.

Enforcement continues and is recent. In April/May 2026, reporting described a 20-year-old man and his 17-year-old girlfriend detained by religious enforcement officers during what the man said was a late-night hair-dyeing session at her home, with the girl's mother present and aware — an incident that generated significant public discussion.

We are presenting this as reported controversy, not as our verdict on Syariah enforcement. These are documented incidents and documented criticisms. There are also arguments made in defence of the practice — that enforcement is a matter for the states, that it applies to Muslims who are subject to that law, and that procedural failures in individual cases are not an argument against the offence itself. Readers can weigh both.

6. Related boundary issues

Conversion and status disputes. The hardest cases at the 121(1A) boundary are not khalwat but status questions — whether a person is legally Muslim, apostasy, the religion of children where one parent converts, and the effect of a conversion on a non-Muslim spouse's rights. Commentary notes that Syariah courts have made orders affecting non-Muslims and that determining whether a person is a "Muslim" came to be treated as a matter within Syariah jurisdiction, which is what creates the trap.

A 2024 Federal Court decision invalidated major portions of Kelantan's 1985 Islamic criminal code as amended, with implications for other state Syariah-based criminal codes — a significant development on the limits of state Syariah legislative competence.

If your situation involves conversion, a child's religion, or a marriage across the religious line, this article is not enough. Get a lawyer with constitutional and family law experience.

What to actually do

If you are a non-Muslim present during a raid:

• Stay calm and do not resist. Physical resistance creates offences under civil law regardless of the Syariah position.
• State clearly that you are not a Muslim, and say what your religion is. Do this early and plainly.
• Produce identification. Your MyKad shows your religion if you are Muslim; the absence of that endorsement is relevant. Carry ID.
• Ask which authority the officers are from and ask to see their authority card. Note names and numbers.
• Ask expressly: "Am I being detained, and under what law?" A non-Muslim cannot be detained under a Syariah enactment.
• Do not sign anything in a language you do not read, and do not sign a statement that describes you as a Muslim or accepts a Syariah offence.
• Ask to contact a lawyer and a family member.
• If police are present and you are being detained under civil law, the CPC framework applies — see the companion article (The CPC Sections That Actually Govern Your Arrest: s.23, s.28, s.28A, s.117, s.112 and s.387).
• Write everything down afterwards: times, names, what was said, what was taken, any injuries. Seek medical attention and keep records if force was used.

If you are the Muslim partner:

• You are subject to the state Syariah enactment and the position is materially different. Get advice from a peguam Syarie.
• Article 5(4) requires production before a Syariah judge within 24 hours excluding travel time.

If you believe your rights were violated:

• SUHAKAM (suhakam.org.my) accepts complaints of human rights violations.
• Civil claims have been brought — the 2017 JAWI suit is the example.
• Bar Council Legal Aid Centres: malaysianbar.org.my.
• Emergency: 999.

One practical note. Practitioners have observed that these enforcement operations tend to occur at budget hotels rather than established hotels or gated residential communities. Make of that what you will.