- Published on
KembaraXtra-Malaysian Criminal Law-Islamic Criminal Offences : The Practice in Malaysia
Q1: What is the religious and social background of Malaysia in relation to Islamic criminal law?
Answer:
Malaysia is a multi-ethnic and multi-religious country, with Islam occupying a special constitutional position. Although Muslims form the majority, followers of other religions such as Christianity, Buddhism and Hinduism are free to practise their religions in peace and harmony. This reflects Malaysia’s pluralistic social structure while recognising Islam as the religion of the Federation.
Q2: What is the constitutional status of Islam in Malaysia?
Answer:
Under Article 3(1) of the Federal Constitution, Islam is declared the religion of the Federation. However, this provision does not elevate Islamic law to supreme law status, nor does it allow unrestricted implementation of Islamic criminal law. Other religions may still be practised peacefully throughout the Federation.
Q3: Who is considered a “Malay” under the Federal Constitution?
Answer:
Article 160(2) of the Federal Constitution defines a Malay as a person who:
In Lina Joy v Majlis Agama Islam Wilayah Persekutuan & Anor, the court held that a person professes Islam if they were brought up as a Muslim, lived as a Muslim, and were commonly reputed to be Muslim. These factors constitute strong evidence of a person’s religious identity.
Q4: How does the Federal Constitution define “law” and what is its significance to Islamic law?
Answer:
Article 160 defines “law” as written law, common law, and custom or usage having the force of law. Islamic law is deliberately excluded from this definition, indicating that it does not have the same constitutional status as federal criminal law.
Q5: What is the scope of Islamic law in Malaysia today?
Answer:
Islamic law in Malaysia is largely confined to:
This limitation arises from the constitutional division of legislative powers.
Q6: Which body has the power to enact criminal law in Malaysia?
Answer:
Under the Federal List (Ninth Schedule), criminal law is within the exclusive legislative domain of Parliament. States may only legislate on Islamic criminal matters to the extent permitted by federal law.
Q7: What is the jurisdiction of the Syariah Courts in Malaysia?
Answer:
Syariah Courts:
They do not possess inherent criminal jurisdiction.
Q8: What law governs the criminal jurisdiction of Syariah Courts?
Answer:
The Syariah Courts’ criminal jurisdiction is governed by the Syariah Courts (Criminal Jurisdiction) Act 1965, a federal statute that strictly limits sentencing powers.
Q9: How has the Syariah Courts (Criminal Jurisdiction) Act 1965 developed over time?
Answer:
These limits remain unchanged to this day.
Q10: How does Syariah Court criminal jurisdiction compare with civil courts?
Answer:
The criminal jurisdiction of Syariah Courts is significantly narrower than that of the First Class Magistrates’ Court, which may:
Q11: How do punishments differ between Syariah criminal law and the Penal Code?
Answer:
Punishments under the Penal Code are substantially harsher. For example:
Q12: Why are hudud punishments not implemented in Malaysia?
Answer:
Hudud punishments cannot be implemented because:
Q13: What types of Islamic criminal offences are recognised in Malaysia?
Answer:
Islamic criminal law applies mainly to:
Q14: How is whipping under Syariah law regulated?
Answer:
Syariah whipping is governed by section 125 of the Syariah Criminal Procedure (Federal Territories) Act 1997 and includes safeguards such as:
Its purpose is rehabilitative and reformative.
Q15: How does Syariah whipping differ from civil whipping?
Answer:
Civil whipping under the Criminal Procedure Code is far more severe and may cause permanent scars. In Public Prosecutor v Jackki bin Zainudin, the court described civil whipping as retributive and preventive, imposed for serious offences.
Q16: What principles guide sentencing in Malaysian criminal law?
Answer:
Sentencing must reflect:
In Tuan Mat bin Tuan Lonik v Public Prosecutor, the court emphasised that punishment must be severe enough to deter offenders and prevent recidivism.
Q17: What was decided in Iki Putra bin Mubarrak v Kerajaan Negeri Selangor & Anor?
Answer:
The Federal Court unanimously held that:
Q18: What categories of Syariah offences remain valid after Iki Putra?
Answer:
The Federal Court recognised three valid categories:
Q19: How does Article 8 (equality before the law) affect Syariah offences?
Answer:
The court noted that applying lighter punishment to Muslims under Syariah law while non-Muslims face harsher Penal Code penalties for similar conduct may raise issues of unequal treatment, potentially violating Article 8.
Q20: What is the overall position of Islamic criminal law in Malaysia?
Answer:
Islamic criminal law in Malaysia exists within a constitutionally constrained framework, operating alongside civil law but limited in scope, jurisdiction, and punishment. Judicial decisions reaffirm the supremacy of the Federal Constitution and Parliament in criminal matters.
EXAM-CONCLUSION (PERFECT CLOSING PARAGRAPH)
Islamic criminal offences in Malaysia reflect a balance between constitutional supremacy and religious observance. While Syariah Courts operate parallel to civil courts, their criminal jurisdiction remains narrowly confined by federal law, as affirmed in landmark decisions such as Lina Joy and Iki Putra. Consequently, Islamic criminal law in Malaysia focuses on personal and moral regulation rather than the full implementation of hudud punishments.
Q1: What is the religious and social background of Malaysia in relation to Islamic criminal law?
Answer:
Malaysia is a multi-ethnic and multi-religious country, with Islam occupying a special constitutional position. Although Muslims form the majority, followers of other religions such as Christianity, Buddhism and Hinduism are free to practise their religions in peace and harmony. This reflects Malaysia’s pluralistic social structure while recognising Islam as the religion of the Federation.
Q2: What is the constitutional status of Islam in Malaysia?
Answer:
Under Article 3(1) of the Federal Constitution, Islam is declared the religion of the Federation. However, this provision does not elevate Islamic law to supreme law status, nor does it allow unrestricted implementation of Islamic criminal law. Other religions may still be practised peacefully throughout the Federation.
Q3: Who is considered a “Malay” under the Federal Constitution?
Answer:
Article 160(2) of the Federal Constitution defines a Malay as a person who:
- Professes the religion of Islam,
- Habitually speaks the Malay language, and
- Conforms to Malay customs.
In Lina Joy v Majlis Agama Islam Wilayah Persekutuan & Anor, the court held that a person professes Islam if they were brought up as a Muslim, lived as a Muslim, and were commonly reputed to be Muslim. These factors constitute strong evidence of a person’s religious identity.
Q4: How does the Federal Constitution define “law” and what is its significance to Islamic law?
Answer:
Article 160 defines “law” as written law, common law, and custom or usage having the force of law. Islamic law is deliberately excluded from this definition, indicating that it does not have the same constitutional status as federal criminal law.
Q5: What is the scope of Islamic law in Malaysia today?
Answer:
Islamic law in Malaysia is largely confined to:
- Muslim personal law (marriage, divorce, maintenance, custody),
- Inheritance and gifts, and
- Minor criminal offences against the precepts of Islam.
This limitation arises from the constitutional division of legislative powers.
Q6: Which body has the power to enact criminal law in Malaysia?
Answer:
Under the Federal List (Ninth Schedule), criminal law is within the exclusive legislative domain of Parliament. States may only legislate on Islamic criminal matters to the extent permitted by federal law.
Q7: What is the jurisdiction of the Syariah Courts in Malaysia?
Answer:
Syariah Courts:
- Have jurisdiction only over persons professing Islam,
- Derive authority from Article 74(2) and the State List, and
- May only exercise criminal jurisdiction as conferred by federal law.
They do not possess inherent criminal jurisdiction.
Q8: What law governs the criminal jurisdiction of Syariah Courts?
Answer:
The Syariah Courts’ criminal jurisdiction is governed by the Syariah Courts (Criminal Jurisdiction) Act 1965, a federal statute that strictly limits sentencing powers.
Q9: How has the Syariah Courts (Criminal Jurisdiction) Act 1965 developed over time?
Answer:
- 1965: Limited punishment to six months’ imprisonment or RM1,000 fine
- 1984 amendment: Increased punishment to:
- Imprisonment up to three years
- Fine up to RM5,000
- Whipping up to six strokes
- 1989: Extended application to all states, including Sabah and Sarawak
These limits remain unchanged to this day.
Q10: How does Syariah Court criminal jurisdiction compare with civil courts?
Answer:
The criminal jurisdiction of Syariah Courts is significantly narrower than that of the First Class Magistrates’ Court, which may:
- Hear offences punishable up to ten years’ imprisonment,
- Impose imprisonment up to five years,
- Impose fines up to RM10,000,
- Order whipping up to twelve strokes.
Q11: How do punishments differ between Syariah criminal law and the Penal Code?
Answer:
Punishments under the Penal Code are substantially harsher. For example:
- Incest:
- Syariah law: max 3 years / RM5,000 / 6 strokes
- Penal Code (s 376B): 6–20 years’ imprisonment + whipping
- Sodomy:
- Syariah law: limited punishment
- Penal Code (s 377B): up to 20 years’ imprisonment + whipping
Q12: Why are hudud punishments not implemented in Malaysia?
Answer:
Hudud punishments cannot be implemented because:
- Criminal law falls under federal jurisdiction,
- Islamic law is constitutionally restricted to limited areas,
- Article 3 relates mainly to religious rituals, not criminal enforcement,
- Syariah Courts’ powers are capped by federal legislation.
Q13: What types of Islamic criminal offences are recognised in Malaysia?
Answer:
Islamic criminal law applies mainly to:
- Offences relating to aqidah (faith),
- Offences affecting the sanctity of Islam,
- Offences against morality, such as zina, khalwat, and consumption of intoxicants.
Q14: How is whipping under Syariah law regulated?
Answer:
Syariah whipping is governed by section 125 of the Syariah Criminal Procedure (Federal Territories) Act 1997 and includes safeguards such as:
- Medical examination before execution,
- Postponement for pregnant offenders,
- Moderate force,
- No whipping on sensitive body parts,
- No injury or scarring.
Its purpose is rehabilitative and reformative.
Q15: How does Syariah whipping differ from civil whipping?
Answer:
Civil whipping under the Criminal Procedure Code is far more severe and may cause permanent scars. In Public Prosecutor v Jackki bin Zainudin, the court described civil whipping as retributive and preventive, imposed for serious offences.
Q16: What principles guide sentencing in Malaysian criminal law?
Answer:
Sentencing must reflect:
- Deterrence,
- Public interest,
- Gravity of the offence.
In Tuan Mat bin Tuan Lonik v Public Prosecutor, the court emphasised that punishment must be severe enough to deter offenders and prevent recidivism.
Q17: What was decided in Iki Putra bin Mubarrak v Kerajaan Negeri Selangor & Anor?
Answer:
The Federal Court unanimously held that:
- Parliament has primary authority over criminal law,
- Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995 was unconstitutional,
- State Syariah offences are valid only if they do not encroach upon federal criminal law.
Q18: What categories of Syariah offences remain valid after Iki Putra?
Answer:
The Federal Court recognised three valid categories:
- Offences relating to Islamic faith (aqidah),
- Offences protecting the sanctity of Islam,
- Moral offences applicable to Muslims.
Q19: How does Article 8 (equality before the law) affect Syariah offences?
Answer:
The court noted that applying lighter punishment to Muslims under Syariah law while non-Muslims face harsher Penal Code penalties for similar conduct may raise issues of unequal treatment, potentially violating Article 8.
Q20: What is the overall position of Islamic criminal law in Malaysia?
Answer:
Islamic criminal law in Malaysia exists within a constitutionally constrained framework, operating alongside civil law but limited in scope, jurisdiction, and punishment. Judicial decisions reaffirm the supremacy of the Federal Constitution and Parliament in criminal matters.
EXAM-CONCLUSION (PERFECT CLOSING PARAGRAPH)
Islamic criminal offences in Malaysia reflect a balance between constitutional supremacy and religious observance. While Syariah Courts operate parallel to civil courts, their criminal jurisdiction remains narrowly confined by federal law, as affirmed in landmark decisions such as Lina Joy and Iki Putra. Consequently, Islamic criminal law in Malaysia focuses on personal and moral regulation rather than the full implementation of hudud punishments.
0 Comments