Syariah Judge's Perspective on Community Service Order

By Ismail, Nurbazla; Samuri, Mohd Al Adib | Asian Social Science, August 2014 | Go to article overview

Syariah Judge's Perspective on Community Service Order


Ismail, Nurbazla, Samuri, Mohd Al Adib, Asian Social Science


Abstract

Community service order is a new form of punishment to be widely applied in the Syariah courts particularly in Malaysia. Its implementation seems fit charging for light offences or first offences. However, there are several issues begging for analysis before implementation can be proposed and those issues are; the absence of relevant provisions mentioned on the subject matter in the Syariah Court, to what extent community service order can be categorized as a takzir (judge discretion) punishment, and the issue of association between the perspective of syariah judge and maqasid syariah on that matter. Thus, the objectives of this study; to analyze the concept of community service order according to maqasid syariah, to explain the perspective of syariah judge in that respect, and to identify the coordination of syariah judge's perspective with maqasid syariah. This is a case study based on qualitative research approach. Data collection is by the methods of document analysis and semi-structured interviews, while data analysis by thematic and descriptive methods. The study finds that most of the syariah judges conform to the opinion that community service order can be categorized as a takzir punishment. A takzir punishment fits the requirement of maqasid syariah vis a vis giving evidence that community service order is based on the objective of punishment in Islam (maqasid syariah). Therefore, this study is important to support the argument for the construction of a specific guidance for the implementation of a community service order punishment in the Malaysian Syariah court.

Keywords: community service order, syariah judge's perspective, maqasid syariah

1. Introduction

Syariah Court in Malaysia has jurisdiction relating to Syariah criminal offences based on the provisions of section 2, Syariah Courts (Criminal Jurisdiction) Act 1965 (Revised 1988) (Act 355) which states that the offence can only be attributed to those who are Muslims. The term "offences" is only mentioned in the Ninth Schedule of the Federal Constitution in relation to offences against the precepts of Islam only. While punishment for such offences is also imprisonment not exceeding three years or a fine not exceeding five thousand ringgit or with whipping not exceeding six strokes or with any combination there of.

Based on the provisions set out, it is clear that there is no mention of provision related to community service order in the Syariah Court. Therefore, consideration should be given to establish a specific provision or to make clear of existing provisions of such order. As the implementing body of the Islamic justice system in Malaysia, opinions and perspectives of the Syariah judges with respect to this punishment should be reviewed.

2. Method

This study is conducted to examine community service order according to Islamic law and the prospect of execution of the sentence in the syariah criminal justice system of Malaysia. Therefore, this research will discuss the perspective of Syariah judges against the community service order so that the finding supports the construction of a set of guidelines for the implementation of this punishment in the future.

Data are collected through semi-structured interviews on nine of the Syariah High Court Judges and five Chief Registrars of the State Syariah Court. Syariah court is the implementing body for the proposed punishment. Since there are fourteen Syariah courts in Malaysia, only five states are chosen based on zoning of those states are Pahang, Johor, Selangor, Federal Territory and Kedah. While two judges of the High Court or one Chief Registrar chosen because they had tried such cases or in the midst of trials on syariah criminal cases related to the subject of the study.

3. The Concept of Community Service Order

To discuss the problems and answer the first question of this study which is the underlying concept of punishment for community service order? …

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