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Kembaraxtra-Islamic Law - Overview
Crimes under Islamic law are classified according to the nature of the rights affected. First, there are crimes against society, which are punished to safeguard public interest and social order. Most ḥadd offences fall within this category. Second, there are crimes against individuals, which are punished to protect private rights; these include offences governed by qiṣāṣ and diyah. Ta‘zīr offences may involve either public rights or individual rights, depending on the nature of the wrongdoing.
Ḥadd offences such as zinā (unlawful sexual intercourse), theft, qazaf (false accusation of zinā), consumption of intoxicants, hirābah (highway robbery), baghy (rebellion), and riddah (apostasy) are crimes for which punishments are fixed and prescribed by Allah. Once the offence is proven, these punishments must be imposed without regard to the offender’s status. They cannot be reduced, increased, annulled, or altered by the court or any authority. Accordingly, the judge has no discretion in sentencing once a ḥadd offence is established.
In Malaysia, Syariah courts operate parallel to the civil courts, but their jurisdiction is constitutionally limited. Syariah courts have authority only over Muslims and derive their criminal jurisdiction from State laws enacted under Article 74(2) of the Federal Constitution and the Ninth Schedule (State List). Their sentencing powers are further restricted by the Syariah Courts (Criminal Jurisdiction) Act 1965, which limits punishment to a maximum of three years’ imprisonment, a fine of RM5,000, six strokes of whipping, or any combination thereof. This jurisdiction is significantly more limited compared to even the First-Class Magistrates’ Court in the civil system.
As a result, offences against decency under the Syariah Criminal Offences (Federal Territories) Act 1997, such as zinā, incest, sodomy, and prostitution, carry punishments that do not correspond with the punishments prescribed in the Qur’an and Sunnah. Under Islamic law, the punishment for fornication is one hundred lashes, and for adultery, stoning to death, whereas under the 1997 Act, zinā—regardless of whether it is fornication or adultery—is punishable only by a fine, short imprisonment, whipping of up to six strokes, or a combination thereof.
Given these limitations, the current criminal jurisdiction of the Syariah courts is insufficient to fully enforce Islamic criminal law in Malaysia. It is therefore argued that the legislature should consider enhancing the Syariah courts’ criminal jurisdiction, ensuring that punishments are proportionate to the seriousness of offences and effective in deterring repeat criminal conduct.
Crimes under Islamic law are classified according to the nature of the rights affected. First, there are crimes against society, which are punished to safeguard public interest and social order. Most ḥadd offences fall within this category. Second, there are crimes against individuals, which are punished to protect private rights; these include offences governed by qiṣāṣ and diyah. Ta‘zīr offences may involve either public rights or individual rights, depending on the nature of the wrongdoing.
Ḥadd offences such as zinā (unlawful sexual intercourse), theft, qazaf (false accusation of zinā), consumption of intoxicants, hirābah (highway robbery), baghy (rebellion), and riddah (apostasy) are crimes for which punishments are fixed and prescribed by Allah. Once the offence is proven, these punishments must be imposed without regard to the offender’s status. They cannot be reduced, increased, annulled, or altered by the court or any authority. Accordingly, the judge has no discretion in sentencing once a ḥadd offence is established.
In Malaysia, Syariah courts operate parallel to the civil courts, but their jurisdiction is constitutionally limited. Syariah courts have authority only over Muslims and derive their criminal jurisdiction from State laws enacted under Article 74(2) of the Federal Constitution and the Ninth Schedule (State List). Their sentencing powers are further restricted by the Syariah Courts (Criminal Jurisdiction) Act 1965, which limits punishment to a maximum of three years’ imprisonment, a fine of RM5,000, six strokes of whipping, or any combination thereof. This jurisdiction is significantly more limited compared to even the First-Class Magistrates’ Court in the civil system.
As a result, offences against decency under the Syariah Criminal Offences (Federal Territories) Act 1997, such as zinā, incest, sodomy, and prostitution, carry punishments that do not correspond with the punishments prescribed in the Qur’an and Sunnah. Under Islamic law, the punishment for fornication is one hundred lashes, and for adultery, stoning to death, whereas under the 1997 Act, zinā—regardless of whether it is fornication or adultery—is punishable only by a fine, short imprisonment, whipping of up to six strokes, or a combination thereof.
Given these limitations, the current criminal jurisdiction of the Syariah courts is insufficient to fully enforce Islamic criminal law in Malaysia. It is therefore argued that the legislature should consider enhancing the Syariah courts’ criminal jurisdiction, ensuring that punishments are proportionate to the seriousness of offences and effective in deterring repeat criminal conduct.
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