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    NG YIH MIIN(BRYAN)1101106482

    Handwritten assignment

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    Discuss the Islamic Penalprovisions comparingwith the Civil Law asapplied in Malaysia

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    Islamic Criminal Law in Malaysia is found under Syariah CriminalOffence(Federal Territories) Act as well as in Syariah Criminal Offence of eachstate such as Syariah Criminal Offence Terengganu Enactmen3H/2002 M.

    Before taking the insight of the provision, there should be a brief explanationof crimes in Islam. There are mainly three categories of crimes in Islam,

    namely:HududQesasTaazir

    Hudud crimes are punishable by had which means the penalties are fixed foreach offence according to the stipulation in the Quran and Sunnah.

    Prosecution of such crimes is mandatory as compared to taazir where thepunishment is of discretionary of the judge.

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    Riddha (Apostasy)Baghi(Transgression)Sariqa(theft)

    Haraba(highway robbery)Zina (adultery)Qadhf (Slander)Shorb al-khamr(drinking of alcohol)Each of the seven categories will be discussedin the later part of this presentation.

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    QesasQesas is not given a specific or mandatorycriminal penalty as compared to Hudud. Thelegal society and ideology of the era will shape

    the law according to Qesas. The Qesas crimesinclude:MurderVoluntary HomicideInvoluntary HomicideInternational Crimes against the personUnintentional crimes against the person

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    Taazir Taazir offences encompassed none of theseincluded in Qesas and Hudud. It includescrime involving tangible and intangible harmthat could be sentence with penalty in theform of corrective nature. The penalty is suchas punishment by imprisonment,compensation and fines. No taazir penaltyshall be higher than punishment for Hudud.

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    The principle that criminal charge shall not beapplied retroactively.In Surah al-Israa (XVII: 15)And nor shall we be punishable until we hadsent them an Apostle. It means that the accused must be givenopportunity to know the law before he could bepunished with that law. Likewise, in Surah al-Qesas (XXVII:59) states: Nor was your Lord theone to destroy a population until we sent to it anApostle who shall divulge upon them our signs In Surah al-Maidah (V:98) says:God forgives what is past.

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    Prophet said, Avoid using circumstantialevidence in hudud . Aishah reported that Prophet( Peace upon hisname) said,Avoid condemning the Muslim to Hududwhenever you can and when you can find a

    way out for a Muslim, then release him. The presumption of innocence is used inqesas and taazir .

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    Riddha- ApostasyIt is well mentioned in Surah al- Maidah( V:38)that: And whoever of you turns from his religion and

    dies disbelieving, their work have failed in thisworld and the next. Those who are the inhabitantof fire: therein shall dwell forever. Prophet(Peace in His name) interpreted this versethat the crime of apostasy shall be punishable byhad of death penalty. So, what amount toApostasy?It is when a Muslim rejects Islam by word or deedor turns against Islam by word or deed. Thisapplies when a Muslim denies the five pillars of Islam and Allah as the Almighty god.

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    Apostasy although is not explicitly mentioned inSyariah Criminal Offence( Federal Territories) Act1997, it could be most proximately found in Part3 of the said Act.Section 7 mentioned :Any person who orally or in writing or by visiblerepresentation or in any other manner-Insults or brings into contempt the religion of IslamDerides,apes or ridicules the practices orceremonies relation to the religion of Islam; orDegrades or brings into contempt any lawrelating to the religion of Islam.

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    In s8, it mentioned that any person whoderides, insult or ridicules or brings intocontempt the verses of Al-Quran and Hadithshall be guilty of an offence.

    The difference that could be seen is that thepunishment by death is not practiced inMalaysia under the Islamic Criminal Act 1997.Instead, it is substituted with imprisonment

    and fine. As comparison to civil criminal lawwhich is contained in the Penal Code, there isno provision provided for Apostasy.

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    It is stated in Surah al-Maidah( V:38):As the thief, male or female, cut off his or her hands,a punishment by the way of example, from God fortheir crimes. The punishment is harsh in order to achieve the

    effect of deterrence amongst the offenders. However,when the punishment is harsh, the evidentiary ruleswill also be stringent. It is required that the act of taking be accompanied by a trespass.A person steal because he was hungry will not beconsidered to be punished with had. This had shallnot be applied in the case of doubt. The thief shall bepunished with Taazar where judge finds itappropriate

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    In the Penal Code, theft will fall under the samedescription under s378 to s382A. Theft could begenerally divided into motor vehicle theft,dwelling house theft or theft causing death.

    Under s378, it is said that anybody intending tomove a movable property dishonestly out of possession of the person without consentamounting to theft.

    The punishment is under s379 which amounts tofine or both and for second time offender, anadditional punishment of whipping will be given.

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    It is well quoted in the Quran that, The punishment of thosewho wage war against God and His Apostle, and strive withmight for mischief through the Land is execution or crucifixionor cutting of limbs from opposite sides or exile from the land.

    Jurists considered harabah equivalent to banditry and isconsidered as treason. It is a crime which endanger the publicsafety.In Penal CodeHarabah might most proximately mean robbery or gang robberywhich could be found from s390 to s402. It is any act of takingaway such as theft but with force or threat. It could be dividedinto robbery, gang robbery and robbery with weapons.The punishments vary for each of the offences. Punishment of robbery could be found s392 which amount to imprisonment upto 14 years and fine or whipping.

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    Zina- adulteryThis is a crime of sexual intercourse between2 individuals who are not married to eachother. Quran provides for the crime but thepunishment is found in Sunnah.For unmarried adulterer, the penalty isflogging with 100 stripes. For married couple,

    it is lapidating or stoning to death.

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    Hadith mentioned:The woman and the guy guilty of adultery orfornication, flog each of them with a hundredstripes. Let no compassion move you in theirease. In the lifetime of the Prophet, he had orderedmarried couple would commit adultery to bestoned to death. This harsh punishment hadclearly shown a sign of deterrence.The burden of proof is that it is pre-requisite tohave four witnesses or confessed by the adulterer,whom must provide full details of the act withcollaboration and repeat it four times to the Judgeon four different occasions.

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    In Malaysia, the Islamic Criminal Act 1997,the definition of Zina could be divided intosexual intercourse out of wedlock.It was said that if any man perform sexual

    intercourse onto a woman who is not hislawful wife will be punished for a term notexceeding 3 years or to whipping notexceeding 6 strokes under s23.

    The evidence of pregnancy out of wedlockcould be considered as a prima facie evidenceof the commission of an offence.

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    Based on the hadith : And those who launchagainst chaste woman and produce not 4witnesses to support their allegations. Flog themwith 80 stripes and reject their evidence evenafter, such men are wicked and transgressors. In Malaysia, the Islamic Criminal Act states in s30that anybody who gives false evidence,information or statement will be liable for a finenot exceeding RM3000.00 or to imprisonment fora term not exceeding 2 years or to both.In tort and Penal Code, slander and defamationcould fall under the law of tort and Penal Code forcriminal defamation under s499 which carries apunishment of 2 years and a fine.

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    First revelation in Quran under Surah al- Baqarah said:They ask thee concerning wine and gambling, say inthem is great sin and same profit for man but the sinis greater than the profit. Another verse mentioned in Surah al- Nissa (IV:43)that:Ye who believe, approach not prayers with a mindbefogged, until ye can understand all ye say. The final revelation of Quran forbids all form of alcohol drinking as it says:

    O ye who believe, intoxicants and gambling, idolatryand divination by arrows, are Satans Handiwork. In Malaysia, anybody who consumes intoxication drinkshall be guilty of an offence under s19 of the IslamicCriminal Act 1997.

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    Qesas means equality or equivalence. It can bedivided into crimes against the person or againstthe body includes murder, voluntary killing,involuntary killing and intentio