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Introduction Islamic Criminal Law in Malaysia is found under Syariah Criminal Offence(Federal Territories) Act as well as in Syariah Criminal

Offence of each state such as Syariah Criminal Offence Terengganu Enactmen3H/2002 M. Before taking the insight of the provision, there should be a brief explanation of crimes in Islam. There are mainly three categories of crimes in Islam, namely: 1) Hudud 2) Qesas 3) Taazir Hudud crimes are punishable by had which means the penalties are fixed for each offence according to the stipulation in the Quran and Sunnah. Prosecution of such crimes is mandatory as compared to taazir where the punishment is of discretionary of the judge. There are 7 types of Hudud Crime : 1) 2) 3) 4) 5) 6) 7) Riddha (Apostasy) Baghi(Transgression) Sariqa(theft) Haraba(highway robbery) Zina (adultery) Qadhf (Slander) Shorb al-khamr(drinking of alcohol)

Each of the seven categories will be discussed in the later part of this presentation. Qesas Qesas is not given a specific or mandatory criminal penalty as compared to Hudud. The legal society and ideology of the era will shape the law according to Qesas. The Qesas crimes include: 1) 2) 3) 4) 5) Taazir Taazir offences encompassed none of these included in Qesas and Hudud. It includes crime involving tangible and intangible harm that could be sentence with penalty in the form of corrective nature. The Murder Voluntary Homicide Involuntary Homicide International Crimes against the person Unintentional crimes against the person

penalty is such as punishment by imprisonment, compensation and fines. No taazir penalty shall be higher than punishment for Hudud. Basic Principle of Criminal Law in Islam The principle that criminal charge shall not be applied retroactively. In Surah al-Israa (XVII: 15) And nor shall we be punishable until we had sent them an Apostle. It means that the accused must be given opportunity to know the law before he could be punished with that law. Likewise, in Surah al-Qesas (XXVII:59) states: Nor was your Lord the one to destroy a population until we sent to it an Apostle who shall divulge upon them our signs In Surah al-Maidah (V:98) says: God forgives what is past. The Second Presumption : Innocence until Proven Guilty or Otherwise Prophet said, Avoid using circumstantial evidence in hudud. Aishah reported that Prophet( Peace upon his name) said, Avoid condemning the Muslim to Hudud whenever you can and when you can find a way out for a Muslim, then release him. The presumption of innocence is used in qesas and taazir. Chapter 2: Hudud Crimes and Penalties Riddha- Apostasy It is well mentioned in Surah al- Maidah( V:38) that: And whoever of you turns from his religion and dies disbelieving, their work have failed in this world and the next. Those who are the inhabitant of fire: therein shall dwell forever. Prophet(Peace in His name) interpreted this verse that the crime of apostasy shall be punishable by had of death penalty. So, what amount to Apostasy? It is when a Muslim rejects Islam by word or deed or turns against Islam by word or deed. This applies when a Muslim denies the five pillars of Islam and Allah as the Almighty god. Riddha in Malaysia Context Apostasy although is not explicitly mentioned in Syariah Criminal Offence( Federal Territories) Act 1997, it could be most proximately found in Part 3 of the said Act.

Section 7 mentioned : Any person who orally or in writing or by visible representation or in any other manner(a) Insults or brings into contempt the religion of Islam (b) Derides,apes or ridicules the practices or ceremonies relation to the religion of Islam; or (c) Degrades or brings into contempt any law relating to the religion of Islam.

In s8, it mentioned that any person who derides, insult or ridicules or brings into contempt the verses of Al-Quran and Hadith shall be guilty of an offence. The difference that could be seen is that the punishment by death is not practiced in Malaysia under the Islamic Criminal Act 1997. Instead, it is substituted with imprisonment and fine. As comparison to civil criminal law which is contained in the Penal Code, there is no provision provided for Apostasy. Sariqa- theft It is stated in Surah al-Maidah( V:38): As the thief, male or female, cut off his or her hands, a punishment by the way of example, from God for their crimes. The punishment is harsh in order to achieve the effect of deterrence amongst the offenders. However, when the punishment is harsh, the evidentiary rules will also be stringent. It is required that the act of taking be accompanied by a trespass. A person steal because he was hungry will not be considered to be punished with had. This had shall not be applied in the case of doubt. The thief shall be punished with Taazar where judge finds it appropriate. Penal Code: Theft In the Penal Code, theft will fall under the same description under s378 to s382A. Theft could be generally divided into motor vehicle theft, dwelling house theft or theft causing death. Under s378, it is said that anybody intending to move a movable property dishonestly out of possession of the person without consent amounting to theft. The punishment is under s379 which amounts to fine or both and for second time offender, an additional punishment of whipping will be given. Harabah- Highway robbery It is well quoted in the Quran that, The punishment of those who wage war against God and His Apostle, and strive with might for mischief through the Land is execution or crucifixion or cutting of limbs from opposite sides or exile from the land. Jurists considered harabah equivalent to banditry and is considered as treason. It is a crime which endanger the public safety.

In Penal Code Harabah might most proximately mean robbery or gang robbery which could be found from s390 to s402. It is any act of taking away such as theft but with force or threat. It could be divided into robbery, gang robbery and robbery with weapons. The punishments vary for each of the offences. Punishment of robbery could be found s392 which amount to imprisonment up to 14 years and fine or whipping. Zina- adultery This is a crime of sexual intercourse between 2 individuals who are not married to each other. Quran provides for the crime but the punishment is found in Sunnah. For unmarried adulterer, the penalty is flogging with 100 stripes. For married couple, it is lapidation or stoning to death. Hadith mentioned: The woman and the guy guilty of adultery or fornication, flog each of them with a hundred stripes. Let no compassion move you in their ease. In the lifetime of the Prophet, he had ordered married couple would commit adultery to be stoned to death. This harsh punishment had clearly shown a sign of deterrence. The burden of proof is that it is pre-requisite to have four witnesses or confessed by the adulterer, whom must provide full details of the act with collaboration and repeat it four times to the Judge on four different occasions. In Malaysia, the Islamic Criminal Act 1997, the definition of Zina could be divided into sexual intercourse out of wedlock. It was said that if any man perform sexual intercourse onto a woman who is not his lawful wife will be punished for a term not exceeding 3 years or to whipping not exceeding 6 strokes under s23. The evidence of pregnancy out of wedlock could be considered as a prima facie evidence of the commission of an offence. Qadhf-slander Based on the hadith: And those who launch against chaste woman and produce not 4 witnesses to support their allegations. Flog them with 80 stripes and reject their evidence even after, such men are wicked and transgressors. In Malaysia, the Islamic Criminal Act states in s30 that anybody who gives false evidence, information or statement will be liable for a fine not exceeding RM3000.00 or to imprisonment for a term not exceeding 2 years or to both. In tort and Penal Code, slander and defamation could fall under the law of tort and Penal Code for criminal defamation under s499 which carries a punishment of 2 years and a fine. Shorb al-Khamr: Drinking of Alcohol

First revelation in Quran under Surah al- Baqarah said: They ask thee concerning wine and gambling, say in them is great sin and same profit for man but the sin is greater than the profit. Another verse mentioned in Surah al- Nissa (IV:43) that: Ye who believe, approach not prayers with a mind befogged, until ye can understand all ye say. The final revelation of Quran forbids all form of alcohol drinking as it says: O ye who believe, intoxicants and gambling, idolatry and divination by arrows, are Satans Handiwork. In Malaysia, anybody who consumes intoxication drink shall be guilty of an offence under s19 of the Islamic Criminal Act 1997. Qesas Qesas means equality or equivalence. It can be divided into crimes against the person or against the body includes murder, voluntary killing, involuntary killing and intentional body injury. Wilful killing or Qalt al- Amd which means killing a person with a lethal weapon and the offender is amounted to retaliation or compensation. Volunatry manslaughter is the killing of an individual with a weapon which is not lethal and the punishment is to pay blood money or diya. Taazir The main 3 categories of Taazir is: 1) Lesser includes crimes of the had and qesas categories. 2) Reduced penalties for inconclusively established 3) Regulatory offence.

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