International Journal of Administration and Governance · International Journal of Administration and Governance, 3(3) December 2017, Pages: 1-6 insignificant aspect of mafsadah does

International Journal of Administration and Governance

ISSN-2077-4486 2017. 3(3): 1-6

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ToCite ThisArticle: Azizah Mat Rashid, Dr. Nor ‘Adha Ab Hamid, Maffuza Salleh, Mohd Farok Mat Nor., Upholding the Principle of Sharia Criminal Law: Malaysia Case Study. Int. J. Adm. Gov, 3(3): 1-6, 2017

Upholding the Principle of Sharia Criminal Law: Malaysia Case Study

1Azizah Mat Rashid, 2Dr. Nor ‘Adha Ab Hamid, 3Maffuza Salleh, 4Mohd Farok Mat Nor

1,2,3,4 Kolej Universiti Islam Antarabangsa Selangor (KUIS), Business & Management Faculty, Bandar Seri Putra, 43000 Kajang Selangor

Address For Correspondence: Azizah Mat Rashid, Kolej Universiti Islam Antarabangsa Selangor (KUIS), Business & Management Faculty, Bandar Seri Putra, 43000 Kajang Selangor. Tel: +60197551979; E-mail: [email protected] Received 3 August 2017; accepted 10 October 2017; published 20 October 2017 A B S T R A C T

Background: Law in life is absolutely inseparable as it is required to regulate every affair in life. Reliance on law is an essential element in ensuring eternal life through harmony based on the norms and rules set by the Creator of the universe. There are two kinds of laws, namely the law resulting from the creation of man, and the law which is based on God's revelation. To achieve it, the legislation must be based on the philosophy that real legal existence of the law is valued and able to perform well. This study describes the philosophy of law that needs to be understood and applied in the implementation of sharia criminal law in order to achieve legislative goals and objectives effectively. The data was analyzed based on the information gathered in the literature reviews and interviews with some representatives of law enforcement agencies. The article aims to bring awareness to the parties involved about the importance of upholding the principle and philosophy of law and applying it in the implementation of sharia criminal law in Malaysia.

Key words: philosophy, Islamic law, sharia criminal law

INTRODUCTION

Islamic law is prescribed by Allah s.w.t and is based on certain principles that are outlined to achieve the

objectives set. This proves the uniqueness of Islamic law and Islam is a religion that concerns about peace and

universal harmony which is prescribed by legislation. In the context of legislation, Mahmood Zuhdi (1998)

refers to the law as the legal norm that has been enacted. It refers to the provisions of sharia law that have been

gone through the process of ijtihad and have been specified by the legislature for the Islamic State as the law

which is implemented in that country. Islam created laws that are able to control human behaviour in a way that

peace and justice continues to be guaranteed (Azizah, Nor ‘Adha and Norul Huda, 2016).

Based on the explanation, regardless of the legal form of law, as long as it is based on sharia, all the

principles and objectives of the sharia law must be preserved. This paper is to analyze the importance of the

appreciation of the philosophy and its application in the current implementation in order to meet the objective of

sharia law.

The Philosophy Of Islamic Law:

According to Ahmad Sunawari Long (2016), the science of philosophy is a field that presents problems and

suggests solutions for the benefits of individuals, societies, nations and civilizations. Race-conscious philosophy

has proven in building the civilization of the world, such as the formation of Greek civilization around 500 BD -

300 BD, the excellence of Islam in the Middle Ages in the Arabian Peninsula and the rise of the Renaissance era

and the era of modern philosophy in the West. The success of this civilization is a result from the existing

2 Azizah Mat Rashid et al, 2017

International Journal of Administration and Governance, 3(3) December 2017, Pages: 1-6

interest in the philosophy. The word philosophy is described as coming from a combination of two Greek

words, namely „philein‟ meaning "love" and „sophos‟, which means "wisdom". The word ‘philosophy’ and its

contents are important in the world of Islamic and non-Islamic science of knowledge. Clearly, the philosophy

has an important significance in social development and civilization of a nation.

According to Abdul Basir (2002), although this word existed before the advent of Islam, but it is not

popular at the time the Prophet was still alive. It thrived in the world of Islamic scholars after the Prophet's

death. That is why the word is not found in the Quran and al-Sunnah. However, it does not mean that Islam

rejects and does not talk about philosophy. There is another word originally from the Islamic usage that is often

associated with the philosophy, such as the word of „hikmah‟ or "wisdom". The word of „hikmah‟ is famous in

the Arabic language and mentioned several times in the Quran. Among others are in Surah Luqman (31): 12

which mean:

“And We had certainly given Luqman wisdom (and said), “Be grateful to Allah.” And whoever is grateful

for (the benefit of) himself. And whoever denies (His favour) – then indeed, Allah is Free of need and

Praiseworthy.”

Given the importance of the philosophy, it is suggested that the science of knowledge is internalized,

integrated and applied in the implementation of sharia criminal law in order to always uphold the philosophy of

Islamic law in achieving the objectives of the sharia. Mohammed Akram Laldin (2008) explained, where Sharia

literally means water flowing and a straight path to follow. In explaining the purpose of Islamic law

comprehensively, he said,

“It is the sum total of Islamic teaching and system, which was revealed to Prophet Muhammad S.A.W

recorded in the quran as well as deducible from the Prophet‟s divinely guided lifestyle called the sunnah.”

Based on this description, the Islamic legal system is referring to the teachings of Islam that was revealed to

the Prophet, either recorded in the scriptures of the Quran or Al-Sunnah/Hadith. Briefly Islamic law refers to the

legal system which is the main source of legislation is inspired by Allah s.w.t and followed by hadith as a

second source. As quoted in S. Mahmassani (2000),

“The glorious Koran is the first source of Islamic jurisprudence. All the imams of the Moslem schools,

whether Sunni or Shiah, are in agreement on this and differ only in the interpretation of some verses. The hadith

or the Prophet‟s traditions, the second most important source after the Koran, are considered supplementary to,

and explanatory of, the Koran. The controversies between the schools concerning the traditions started over

ways and means in which they were ascertained and the prerequisites to the acceptance of their authenticity.”

In explaining the source of Islamic law, Mohd Nasran (2002) said, the Islamic legal system is divided into

two main sources of primary sources ranging from the Quran and Sunnah and the second source consisting of

ijma', qiyas, masalih mursalah, istihsan, istishab etc. The second source is obtained based on the ijtihad of the

jurists' in the absence of the main passage. So, it is clear in any situation whatsoever and in the implementation

of sharia criminal law, it needs to rely on a source of legislation that has been set.

The law sanctioned by way of the revelation or the sharia law is objectively important to the entire universe

and is centred on a clear objective in safeguarding the interests of the community. Mohamad Akram Laldin

(2008),

“The primary objective of shariah is the realization of the benefit to the people concerning to their affairs

both in this world and the hereafter. It is generally held that the shariah in all of its parts aims at securing a

benefit for the people or protecting them against corruption and evil.”

The objective of sharia is also stressed through the revelation of Allah s.w.t in Surah al-anbiya (21): 107,

which means:

“And We have not sent you, (O Muhammad), except as a mercy to the worlds.”

In the view of Ibn Ashur as was quoted by Jasser Auda (2010), maqasid sharia refers to the objective or

purpose behind the Islamic jurisprudence. Mahmood Zuhdi (2012) explains it in the simple word, the "Maqasid

al-Shariah" can be translated as the objectives of sharia, while in general it means that the purpose behind the

creation of the sharia law as a whole and each of them behind every law. However, the above description is not

based on any well-established tradition as he said, the classical scholars never defines the term, as compared to

the other terms in the study of sharia, inclusive of Imam al-Syatibi as the ultimate authority in this subject has

also never done so.

Imam al-Ghazali (1998) lists five items and criterias of Maqasid shariah which must be preserved based on

view of scholars, namely the religion, life, mind, wealth and offspring. Whatever is prescribed by Allah s.w.t is

crucial in the maintaining of the basic aspects that people need (Azizah, Nor ‘Adha and Norul Huda, 2016). In

Islamic jurisprudence, Ibn Ashur (t.t) emphasizes the principle of maslahah and the refusal of mafsadah as

follows.

“The legislation covering the perception of masalih does not incur any mafsadah, and the legislation

concerning the prevention of mafasid does not result in the omission of any maslahah. Rather, all Islamic

legislation aims at the awareness of maslahah. It can be seen from this that maslahah does not simply consist of

what is certainly acceptable, nor does mafsadah consist of what is absolutely unacceptable. This is because the



insignificant aspect of mafsadah does not in any way affect the order of the world in the presence of

overwhelming maslahah. Likewise, when the effect of a certain cause has been neutralized by another,

counteracting cause, then the neutralized cause becomes significant.”

In addition, Hashim Kamali (1989) explains that the principle of ṣād zaraie' is one of the underlying

principle of Islamic law through the following statement,

“Sadd zaraie‟ implies blocking the means to an expexted end which is likely to materialise if the means

towards it is not obstructed. Blocking the means must necessarily be understood to imply blocking the means to

evil, not to something good.”

It should be understood that the concept of ṣād zaraie' in Islamic law is intended to prevent or hinder bad

and evil things before it happens. Therefore, Islam prohibits acts that could potentially contribute to bad things

such as the ban on indecent behaviours as it can lead to adultery despite the fact that the act of adultery may not

occur. Hashim Kamali (1989) said that,

“Since sadd al-dharai‟ basically contemplates preventing an evil before its occurance, the question of

intention to procure a particular result cannot be a reliable basis for assessing the means that leads to that

result.”

Shamrahayu (2016) explains that protecting religion itself is actually becomes an objective in the

enforcement of Islamic criminal law while protecting the prescribed entire system. This primer objective is

actually differs between a set of criminal law enforcement of sharia law as compared to the enforcement of

modern/western criminal law. This distinction should be clearly understood by every individual Muslim for

them not to go against the pure Islamic legal thought.

Sharia Criminal Law: The Scenario In Malaysia:

Sharia Criminal law is one of Islamic law authorized the state government through the Federal Constitution

to be drafted and enacted. Ibrahim Lembut (2012) explain the reasons why the Islamic religious affairs is given

to the states rather than the federal government is due to historical factors and also due to the special power and

sovereignty of the Malay rulers as the highest authority in the administration of the government. It is also as the

head of Islam and has the highest power in the administration and the judiciary of the Islamic law to all

provinces and territories.

The implementation power of Islamic law as mentioned was placed under the jurisdiction of the state

through the powers provided in List II of the Ninth Schedule of the Federal Constitution as interpreted by Paizah

Haji Ismail (2007) and Shamrahayu (2016). Based on the powers conferred, the Islamic Law comprising various

means have been enacted at the state level including the Sharia Criminal Law.

Paizah (2007) explains in detail about the history of Islamic law, including the sharia criminal laws in

Malaysia. The earliest statement on the implementation of the Islamic criminal law in Malaysia is recorded in

the inscriptions found in Kuala Berang, Terengganu in 1898 AD. The inscription is dated on the 17th of Rajab

702H, which is equivalent to 22 February 1303. The note is about the offense and the punishment of the crime

of adultery. It states (in its original Malay words):

“Orang berbuat balacara lelaki perempuan setitik; Dewata Mulia Raya jika mereka bujang palu; seratus

rotan. Jika mereka merdeka beristeri; atau perempuan bersuami ditanam hinggakan; pinggang dikembalang

dengan batu matikan”

According to Shamrahayu (2016) which states that although historians disagree on the facts and opinions on

the date of the arrival of Islamic law to the Malay world, but there is no such dispute or disagreement between

them about the fact that the Islamic criminal law has been adopted in this Malay world.

Looking at the development of law in Malaysia nowadays, Shamrahayu (2016) also opined that the Islamic

criminal law has a base and a comfortable position because it has been used and proven to have evolved in the

Malay States. The execution of the offenses provided in the Sharia Criminal Offences in Malaysia is only

subject to a takzir sentences or penalty of not more than three years imprisonment, a fine of RM 5000.00 and a

six strokes/whipping.

The Implementation Of The Sharia Criminal Law In Malaysia:

In Malaysia, the Islamic criminal law is implemented according to the law of sharia criminal procedure

exists in each state. However, the implementation process is very similar in most states. To implement the

provisions of Islamic criminal law requires the implementation of a number of processes that are complementary

to each other, namely the enforcement and the punishment. Muhammad Daud (2015) stated that the three

systems play an important role in the implementation of law namely the enforcement and investigation, the

prosecution and the punishment. The existence of substantive law alone is not sufficient if not accompanied by a

strong enforcement as confirmed by Siti Zubaidah (2014), that the implementation of substantive law should

look at the whole interconnected system involving multiple agencies at all levels. In achieving the objectives of

the legislature, Shamrahayu (2015) cautions that the laws should be accompanied by a systematic enforcement.



The importance of both legal substantive and its implementation cannot be denied and it was also

acknowledged by the Chief Judge of Selangor who said,

"The law enforcement agencies and the prosecution are the two agencies that are directly involved in

ensuring that those who committed the moral-related offenses was brought to the court for trial and sentence."

This fact shows the importance of the enforcement and prosecution process and the involvement of both

processes in making a judgment in court.

Despite the importance of the legal aspects of substantive and the enforcement of the law, there are still

some important things regarding its enforcement that should not happen and need to be improved further. Based

on the data obtained, most informants informed that the authorities have difficulties to complete the proof at a

sufficient level due to several factors and this requires a number of improvements. Among the issues that need

to be addressed is the lacking of cooperation from the community, lack of enforcement personnel, inefficiencies

in handling tasks, lack of equipment and logistical issues, and also the mixing duties among them. The

Honourable Judge of the Sharia High Court, Tawau explains the importance of public awareness in helping to

complete the implementation cycle process of sharia criminal law as he said,

"... It is intertwined knitting each other... "

He further said that the complaint made by the public is the beginning of a process of the enforcement. If no

complaint is made by the community, there would be no investigation unless the investigation carried out during

the normal operation. However, if the sharia criminal offenses occur and no action was taken due to the absence

of a complaint by the community, the justice cannot be enforced and it is thus contrary to the objectives of the

maqasid shariah principles.

The view of the Honourable Chief Judge Terengganu is highly significant too, as he proposed not to wait

only for the public report on immoral activities. Hence he suggests for a full use of enforcement powers given

by the authorities. He said,

"If we just wait for the report, it will not go anywhere…..make full use of powers given and what we have.."

Looking at the current scenario in law enforcement whose rely on public complaints to initiate the

enforcement and investigation, it is very realistic to be implemented. The absence of complaints by a society is

often used as a reason to question why the enforcement is focused on specific cases such as seclusion and illicit

sex, and not on the other offences.

The other major issue in enforcement is the limited equipment and logistics faced by them. For example,

the shortage of vehicles such as vans which caused hiccup for the authorities to go and act immediately when

there is a complaint. The authors are referring to Kedah Religious Enforcement Officers during the interview

conducted. The authors believe that in the process of law enforcement, such small issues should not exist and

need to be minimized because it is a basic requirement in the law enforcement process. If there is any shortage

of the equipment, it will soon affect the implementation process and how the truth and justice would prevail?

Another problem occurs among them is the shortage of enforcement personnel as referring to Selangor

Religious Enforcement Officer during the interview, as he said,

"The problems is on man power.. its shortage.. the ratio of manpower is not balance with PBT..”

Hence, according to them, the lacking of manpower especially as the enforcement officers led to improper

implementation process and sometimes affected the whole process in implementing their duties.

At the prosecution stage, the study found that the problems are under control. It does not have a significant

impact on the process of implementation of the law. But the problems in the enforcement stage itself become

problems that impede the process of prosecution. Thus the improvement in the level of enforcement is needed

because it will not only be able to launch the process of enforcement, but can also help to facilitate the

prosecution and so on.

The main challenge for the prosecution in handling sharia criminal cases is in proving the case for

prosecution in accordance with principles, as someone who claims to have proof of the allegations made. Kedah

Chief Prosecutor warned,

"The prosecution is proof.. a method has been given. Al-bayyinah 'alal muddaie, wal Yamin' ala man

Ankara, as the description of the prosecutor. If we want to prosecute someone, we must have evidence and

sufficient evidence. If the evidence is not sufficient, how we want to charge a person in court, since the charge is

a great things, not small things."

In execution, there are some problems regarding the jurisdiction powers confered on them, as described by

the Sharia Chief Judge of Johor. He believes the challenges faced by judges is the limit of small jurisdiction

power, as he said,

"The challenge is, the powers conferred ..small and very limited.."

According to the Selangor PPP, the sentence being carried out at this time gives less impact on offenders, as

he said,

"... because if we look at the example of the value of the sentence....example under section 25 that deals

with extramarital intercourse. So the punishment was a fine of up to five thousand ringgit. Suppose that 5



thousand and 3 years in prison, six strokes.. and in Selangor the 5 thousand fine is not effective any more for

them.."

Hence he suggests that the improvements especially involving penalties that should be given, for example

by giving the mandatory sentences for certain moral-related offences, in order to realize the objective of Islamic

law principles as a whole.

In addition, the willingness of judges to give a mandatory sentence which is more effective than fines even

a big question. Study done by Arifah and al-Adib (2014) found that, in reality sharia court judges are more

likely to impose a fine instead of imprisonment or whipping/strokes. This led to the aims to restore and prevent

the offender from repeating the offence and to give lesson to others is difficult to achieve. Noor 'Ashikin Hamid

et al. (2015) in a comparative study on penalties for offenses involving indecent adolescent in Malaysia and

Acheh suggested that the sentence prescribed by the enactment of sharia criminal offense in Malaysia is to be

reviewed. This scenario shows how the philosophy and principles of Islamic law are important and need to be

whole-heartedly appreciated and animated by all judges.

Daud Muhammad (2015) in asserting the fundamental goals of objectives of the maqasid shariah is to

establish justice on earth and human, he noted that for the sake of achieving the pure obvjective and beauty of

the Islamic law, the Prophet Muhammad (Pbuh) has appointed judges who have taqwa, piety and strong faith as

well as knowledgable in the principles of sharia or Islamic law and its administration. Determination of these

characteristics in the appointment of a judge proved that how Islam concerns about justice in a judgment by a

judge, which was totally in line with the principles outlined by Islam.

Conclusion:

The social problems occurred in the Muslim community is a serious problems related to Muslims believe in

their ways of life and must be addressed jointly by Muslim community. Although there are many factors that

contribute to the problem, Islam has ordained laws to control the human behaviour that violates the Islamic

established norms. Islam set the specific guidelines for the implementation of the law so as to achieve the

targeted goals according to the Islamic way of life. As to the legislation established and set forth, be it through

divine revelation or man-made laws, it is all the main strength of society. A community needs legislation to

regulate the relationship between the members of society and punish those who deviate from its rules, no matter

whether the legislation used fell from the sky or came out of the earth.

In Malaysia, the sharia court jurisdiction in takzir sentences that does not exceed a maximum penalty of a

fine of five thousand ringgit, three years imprisonment and a whipping/strokes of six times. The sentence is not

adequate for more effective sentencing of offenders and be a lesson to the public. The jurisdiction expansion in

sentences is necessary to give space to the sharia authorities in implementing their roles, trusts and

responsibilities fairly and effectively.

It is also suggested that all parties should earnestly believe whole-heartedly and appreciate the philosophy

of the Islamic law and make it a stake in safeguarding the trust given as „khalifatullah‟ or as the creation of

Allah s.w.t. With this spirit, the niche in upholding the Islamic law can be highlighted and translated through the

implementation of the sharia criminal law based on the principles set forth.

ACKNOWLEDGEMENTS

The authors would like to express their deepest thanks and appreciation to all several sharia prosecutors and

attorneys in Malaysia, who participated in the interview research conducted between May – June 2016. Special

thanks go to research grant provider (FRGS 2016/2017) for the grant allocated that enabled the authors to

conduct the research.

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International Journal of Administration and Governance · International Journal of Administration and Governance, 3(3) December 2017, Pages: 1-6 insignificant aspect of mafsadah does