Academic journal article Asian Social Science

The Age of Criminal Responsibility from the Perspective of Malaysian Shariah Law

Academic journal article Asian Social Science

The Age of Criminal Responsibility from the Perspective of Malaysian Shariah Law

Article excerpt

Abstract

The non-conformity in the use of the terms concerning children and their age in the Shariah criminal legal system in the states in Malaysia has given rise to legal conflict as well as causing difficulties in terms of the execution and enforcement of shariah legal crime and its procedures in each of the afore stated states. The existing laws show that there exists non-dissidence in determining the position of children which conflicts with syariah crime. The term young offender was duly provided in the shariah procedural enactment but not in states' shariah criminal law. Similarly, the term 'baligh' was defined and the position of non-baligh children was elucidated in the said law but not under the shariah procedural enactment. Hence, this articles serves to lay down the provisions of both enactments concerned and to compared them with the shariah criminal principles in terms of ascertainment of age and the position of children which are in conflict with the shariah criminal law through the ulama and Islamic fuqaha's standpoint. This approach was adopted to determine as to what extent are the distinctive provisions shariah-compliant. This article unmasks the lacunae on shariah criminal law in the states particularly those pertaining children, conflicting with shariah. This finding raises the possibility re-examination as to the existing provisions. The analysis depicts the fact that each 'baligh' provision is duly reinforced by the ulama and fuqaha's views which contribute to khilaf in this case. Correspondingly, the provision in shariah procedural enactments in Malaysia that a young offender is one who is not less than 10 years of age and not more than 16 years old is still very much debatable, considering the provisions on baligh. Thus, the detailed re-examination of the shariah criminal legal system pertaining children which conflicts with shariah criminal law is very much necessary for the justice of all of the parties concerned.

Keywords: age, young offenders, criminal responsibility, shariah laws, Malaysia states' shariah criminal laws

1. Introduction

The states shariah criminal legislations do not have jurisdiction on offences except in so far as conferred by the Ninth Schedule, List 2 of Federal Constitution of Malaysia. This legal jurisdiction only applies to those professing the religion of Islam, including the young shariah criminal offenders. The Child Act 2001 (Act 611) does not have jurisdictions over a child committing shariah offences notwithstanding it being the exclusive legislations for the children. Under the shariah criminal legislations, none of the states in Malaysia provides for a specific child act or enactment which is in conflict with the shariah criminal law. In fact, there are only few minimal provisions offered to young offenders, the status of the offences, and the criminal procedure governing them.

The definition of the term 'child' for example, is only found in some of the states shariah criminal enactments. The term child is mentioned in all the states shariah criminal enactment of Malaysia except in Perlis, Kedah, Kelantan and Pahang. These provisions are numbered differently and for instance section 51 for Shariah Criminal Offences Act (Federal Territories), Shariah Criminal Offences (State of Johor) Enactment 1997, and Criminal Offences (State of Penang) Enactment 1996; section 10 for Shariah Offences (State of Malacca) Enactment 1991, Shariah Criminal Offences (Selangor) Enactment 2004, and Shariah Criminal Offences (Sabah) Enactment 1995; section 4 for Crimes (Shariah) (Perak)Enactment 1992; section 43 for Shariah Criminal Offences (Selangor) Enactment 1995; section 63 for Shariah Criminal Offences (Taazir) (Terengganu) Enactment 2001 and section 48 for Shariah Criminal Offences (Sarawak) Ordinance 2001. Whilst the only provision that mentions the term 'child' in the shariah criminal procedure enactments is merely for name and address validation and again the sections' number involved is differed from one state to another. …

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