COMPARISON not have power on the matter of

COMPARISON BETWEEN
SYARIAH LAW AND PENAL CODE.

Ninth
Schedule, List 2 of Federal Constitution of Malaysia give jurisdictions to the
states shariah criminal legislation in certain offences. It only applies to
Muslim which is the one professing the religion of Islam including the young
shariah criminal offenders or child offenders. The Child Act 2001 (Act 611) does
not have power on the matter of shariah offences done by child even though it
is an exclusive legislation for children. There is no specific child act provided
by any states in Malaysia which is in conflict with the shariah criminal law.
In fact, there are not many provisions regarding to young offenders, the standing
of the offences, and the criminal procedure in relation to them. For example, the
definition of ‘child’ can only be found in certain states shariah criminal
legislation.

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 Young offenders are categorized as a person
above the age of ten and below the age of sixteen in the states shariah
criminal procedure enactment. The different in the definition and usage
involving two different jurisdictions have caused confusion and uncertainty in
the legal system in Malaysia. In the states shariah criminal law,
there are four different provisions on the matter of baligh which is:

a)
in general term, which the child has reached the age of puberty;

b)
when a person has reached the age of twelve qamariah years;

c)
when a person is above the age of fifteen-year-old; and

d)
baligh and have a good state of mind, a person that has reached the age of puberty.

What
amount to baligh based on several Muslim jurists refers that a child is
mentally and physically fully developed or grown. It was explained by al-Amidy
that the Islamic law has set baligh to be the puberty trait of a child’s wisdom
and intellect maturity. According to Ibn’ Abidin, baligh marks the beginning of
adulthood and marks the end of adolescent, putting full responsibility on their
own conduct. The opinions of majority of the ulama differs with some of
al-Shafii’s jurist which stated that crime done by a child is still a crime,
but they will not be punished under hudud and qisas punishment as they are not
mukalaf. The punishment that will be fall upon the children will be in the form
of ta’dib (rehabilitation) which consist of civil responsibility almost the same
with compensation and diah. The punishment in form of ta’dib falls within the
scope of takzir, thus a child that has not reach baligh, who can think but
still lacking wisdom should receive ta’dib punishment instead of criminal
punishment.  

In
the matter of baligh when a person has reached the age of 12 qamariah years, the
four famous and widely referred mazhab sectors do not show the perception of
baligh begins after the age of twelve years old. The perception of baligh is
used only in the non-existence of visual physiological signs of the child in between
of the ages fifteen and eighteen. The opinion of baligh at the age of twelve
years is not based on any of the highly or usually referred sectors in the
shariah law of Malaysia. The assumption is quite in par with the ruling of
section 83 of Penal Code provisions, which set down that twelve-year-old
children are liable for their criminal conduct without conditions. Nevertheless,
these two legislations are situated in two different situation and jurisdictions
that cannot be reconciled.

In
relation with baligh when the person reached the aged of fifteen, Abdul Qader Audah
states that, the benchmark for puberty in Islamic viewpoint which is a dream,
will usually happen before the age of fifteen years old, but if a child still
has not dream anything even after he has reached the age of fifteen, this is said
to be deficiency in terms of fitrah but does not mean weakness of mind.
According to Muhammad Abu Zahrah, child over the age of fifteen can be considered
baligh as they can differentiate between bad and good. Al-Zailaciy holding onto
hadith by Ibn Umar have the same opinion regarding with the matter, which when
Ibn Umar request permission from Rasulullah SAW to fight in the battle of Uhud
but was turn down, and his age is fourteen years old. But later on, his
permission was granted in the battle of Khandak when he was fifteen years old.
The narration from Umar ibn Abdul Aziz when hearing the new regarding Ibn Umar,
has mentioned that the age of fifteen is the boundaries between adolescent and
adulthood.  The ruling of fifteen years old
as the set of puberty in the Shariah Criminal Enactment of Malacca is in par
with the opinion of the mazhab in reference, but the ages are uneven with the Shariah
Criminal Procedures Enactment and this has caused uncertainty in the application
of the shariah criminal procedure legislation.

Revelation
of puberty is fixed by physiological signs or calculation of maximum age for
baligh. These two conditions involve conflict in agreement between the Muslim
jurists. Hence, the states which general provisions of baligh age in their
shariah criminal laws are in par with the views of certain Muslim jurist.
According to the opinion of Imam Abu Zahrah, al-Qurtubiy, Ibn Abidin, al-Amidiy
and al-Sarakhsiy, the revelation of physiological signs shows the end of
childhood and the evidence of physical development and maturity of the children’s
mind. This provision also takes into consideration the age of puberty according
to the evaluation of age in the lack of physiological signs. There are different
opinion regarding with this matter firstly the age of fifteen years, the second
opinion from Imam Malik which stated age of eighteen years old for boys and
girls. The third opinion comes from Imam Abu Hanifa which sets eighteen years
for boys and seventeen years old for girls in terms of baligh.  This provision has open a wider area in varying
arguments and references of the Muslim jurist and does not conflict with the Islamic
law. But in reality, this can cause ambiguity in enforcement and application of
the states shariah criminal procedure and criminal law.

Perak
is the only state in Malaysia that requires both rusyd and baligh for children
to be considered to be committing a crime. This provision in Perak Shariah law
is in par with the view of most jurist in their discussion regarding with the
execution and conviction of shariah criminal penalties. Al-Kasaniy and Ahmad
Fathiy Bahnasiy stated that baligh child without a doubt is a taklif but its
not in a complete stage until the child mind has reached the stage of rusdy or
maturity. Al-Tusiy in the same opinion stated that the child that reach the age
of baligh has fulfil partially the requirements of mukalaf and one of the
condition under mukalaf is the understanding of Allah’s kitab and developed
mind.1

Section
82 of the Penal Code stated that “nothing is an offence which is done by a
child under ten years of age”. Section 83 of the Penal Code stated that “nothing
is an offence which is done by a child above ten years of age and under twelve,
who has not attained sufficient maturity of understanding to judge of the
nature and consequence of his conduct on that occasion”. In regards of criminal
proceeding for children under the Penal Code, Section 82 clearly stipulates that
the minimum age of criminal responsibility for children is ten years old. A
child which means someone that has reached the aged of ten years old and below
the age of eighteen years old who is suspected of committing a criminal offence
can be detained with or without warrant. They can also be detained for the
purposed of investigation by virtue of section 117 of the Criminal Procedure
Code.2

In
the case of PP v Mohd Turmizy Mahdzir
& Anor is on the matter where the crime was done by a child but he is
only convicted after he reached the age of eighteen years old, thus whether the
case should be heard by a court other than Court for Children. They were originally
charged under s. 39B(1)(a) of the Dangerous Drugs
Act 1952 (“the DDA”) and punishable
under section 39B(2) of DDA to be read with s.
34 of the Penal Code. The accused pleaded not guilty to the
charged before them. Subsequently, the prosecution submit an alternative
charge, an offence under section
6 of the DDA and punishable under section
39A(2) of the same Act in inclusion to the original charge.
Both of them pleaded guilty for the alternative charge but claimed trial for
the original charge. Legal counsel for the accused, submitted that:

(a)
the court should look at the punishment provided under the Child Act 2001 as
both of them were below the age of eighteen years old during the commission of
the offence and given a probation order.

(b)
due to delay of the alternative charge, the accused had been denied the rights
or opportunity to be heard in the Court for Children as they have reached the
age of eighteen years old.

(c)
both of them should not been given custodial sentence but instead should be
place for probation order and

(d)
it will defeat the aim of rehabilitation if the accused was sentenced to
imprisonment as they will mix with the adult prisoners.

The
court in giving the judgement for the case stated that “this court is mindful
that the object, intention and spirit of the legislature in introducing the Act
is for a person who has attained the age of criminal responsibility as
prescribed in section 82 of the Penal
Code and
is under the age of 18 years to be tried by Court For Children and the same
should not be frustrated.3 

In
the case of Veerian T Lachmanen v PP
the court stated that juvenile is defined in section 2 of the Juvenile Courts Act 1947to
mean “a person who has attained the age of criminal responsibility
prescribed in section 82 of the Penal
Code
and is under the age of eighteen” and the punishment for such juvenile
offences is provided under the Juvenile
Courts Act 1947and the type of sentences are stipulated
under s. 12 of the
Juvenile Courts Act 1947.4

Based
on the cases stated above we can see that section 82 of the Penal Code is being
used by the court to defined what is the minimum age of child. It can be seen
as an interpretation section while the punishment for child offender is under
the Child Act 2001.

In a recent news report involving section 82 of the Penal
Code, is an alleged rape case between two children which aged seven and six
years old. The six-year-old girl claimed to have been raped by a seven-year-old
boy in Bukit Beruang. The report was made by the victim mother after her
daughter complaint of pain at her genital part. Malacca deputy police chief
Datuk Ruslan Hassan stated that “In this case, we need to look at some
sections under the law including Section 82 and section 83 of the Penal Code”.5 The
reference for section 82 and 83 of the Penal Code is must as the offender and
victim is below the aged of ten years old.

            In looking at the differences
between shariah law and the penal code, it can be clearly seen, the provision
under the penal code is firmer as it clearly stated it is not an offence if the
offender is below the age of ten years old. Shariah law, being a state law has
many difference in opinion regarding with the issue of baligh, as baligh is the
indication for the offender to be liable for criminal offences. Different opinions
of the scholars have been taken into consideration which has led to ununiformed
decision and law between states. The difference in opinion is not wrong as long
as the root of Islamic principle is not altered and the power for ijtihad of
the judges in deciding the sentence cannot be question but it is better to hold
into one consented opinion to ensure justice for all.

 

 

 

 

 

 

 

1
Wafaa’ Yusof & Anita Abdul Rahim (2014). The age of criminal responsibility
from the perspective of Malaysian Shariah law. 60-3-8920-1705. doi:10.5539/ass.v10n10p95

2 (2006,
December 22). National law and policies on minimum ages- Malaysia. Retrieved
from http://r2e.gn.apc.org/country-node/458/country-minimum

3
2007 9 CLJ 187

4
2001 7 CLJ 466

5 Raffi,
Bachik. (2017, July 27). Polis Melaka siasat laporan budak 7 tahun didakwa
rogol budak tadika. Retrieved from http://www.astroawani.com/berita-malaysia/polis-melaka-siasat-laporan-budak-7-tahun-didakwa-rogol-murid-tadika-150586

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