Generally, Crimes Under Islamic Law

1.0 Introduction

Generally, Crimes under Islamic Law can be classified into 3 major categories: (a) Hudud [plural: Hudud] Crimes (theft, drinking alcohol, illicit sexual relations, et cetera) (b) Qisas (retribution - homicide and assault) and Diyat Crimes (fines paid by an Institution, not the Offender) and (c) Ta'zir Crimes (discretionary punishment decided by the court, i.e. imprisonment). Whereas, crimes under the Malaysian Law are referred to offences committed by a person or persons against the State. These offences are such offences as stated in the Malaysian Penal or other Statutes, i.e. Dangerous Drugs Act 1952. Here, there are varies types of sentences stated under the Islamic Law and also the Malaysian Law in dealing with individual or people who failed to obey the law. i.e commit an offence or a particular act that is against the law. The types of sentences or we can better say punishments imposed against offenders under the Islamic Law and Malaysian Criminal Law are flogging, whipping, amputation of the arm, fine, death sentence, et cetera. This also includes the sentence of "Imprisonment" imposed as a form of punishment under the Islamic Law and also Malaysian Criminal Law.

Basically, the term "imprisonment" can be defined as a form of social control which puts a person or persons under custody of a public authority (The State). Imprisonment is a form of punishment which acts as a medium to isolate the offenders who commit crime against the society whereby it acts as a form of punishment towards the offender. Hence, from the dawn of time till this end, the concept of imprisonment has always been adopted in all countries through-out the world as a form of punishment in upholding justice.

In Malaysia, the concept of imprisonment has been imposed in almost all the criminal offences as provided by the statute. Basically the criminal law in Malaysia is based on the statute, i.e Penal Code, Criminal Procedure Code, Evidence Act, et cetera. The Malaysian Criminal law is deduced from the Federal Constitution (The supreme law in Malaysia), Penal Code (Act 574), Statutes and the Islamic law. In our country, the punishment for all criminal offences is based on Statute which also includes rules and regulations passed by Public Authorities and this inevitably includes the punishment for "imprisonment".

There is various types of offences which carries the sentence of imprisonment i.e. robbery, rape, cheating and etc. On the other hand imprisonment is also imposed as a punishment under the Islamic law( Syariah law) for all Muslims in Malaysia. Islamic law is basically applied to all Muslims in relation to matters concerning religious wrongdoing, family matters and also wrongful conduct against the teaching of Islam. (based on the jurisdiction provided for under the Syariah Courts in Malaysia)

The word "imprison" is defined by the Oxford Advanced Learner's Dictionary (Fifth Edition) as "to put or keep somebody in prison". Under the Islamic law, "imprisonment (al-habs) means deprivation of personal liberty of the offenders by restraining them from free movement in a specified place, of a house, mosque, or any other place meant for it by appointing person authorizing him to keep them in his custody and thus restrain them from enjoying the personal liberty and the freedom of movement ."

This assignment will discuss the objective of imprisonment as a form of punishment in Islamic law in comparison to Malaysian law. The concept and mechanism of how imprisonment would be conducted under the Islamic and Malaysian perspective, when is the appropriate circumstances which the imprisonment is imposed and also the effects of imprisonment under Islamic law in comparative with the Malaysian law.

2.0 OBJECTIVE OF IMPRISONMENT

The whole idea of putting a person or persons behind bars via the tools of imprisonment as a method of punishment serves its same purpose or objective be it under the Islamic Law and also the Malaysian Criminal Law. At the end of the day, imprisonment acts as a mechanism/ method of punishing a person due to his wrongdoings (offence committed) by depriving his liberty, especially freedom of movement with strict rules and regulations in the prison.

Nevertheless, one the most fundamental aims of imprisonment is to instill the idea of deterrence (al-Zajr) as to deter the offender from further committing that particular offence or any offence for that matter. Here, it creates awareness not only for the offender who is indeed punished for his wrongdoings, but also to the society at large of not committing that particular offence. Besides that, the sentence of imprisonment against offenders also helps to keep the society safe, at least temporarily from the offenders that had committed a crime, from further imposing harm towards the society.

Nonetheless, the purpose of imprisonment is also said to be the means of "Retribution" (al-Jaza') under the Islamic law and Malaysian Criminal Law. The concept of retribution basically refers to the principle/ doctrine of "an eye for an eye and a tooth for a tooth". "Retribution" aims to serve as a form of payback either with blood, for example, death sentence imposed on a person who commits an act of murder. This ensures that justice is done to the victim due to the wrongful conduct of the offender. However, under the Islamic law, for the offence of murder, if the offender is forgiven by the victim's family members, then, a form of compatible compensation should be paid by the offender to the victim's family members for their loss/grievances.

In addition, the sentence of imprisonment do play a part in the process of reformation and rehabilitation (al-Islah wa al-tahdhib) of an offender towards an earnest living. This is simply because there are various activities set by the prison authorities for the offenders such as religious classes for the Muslims, motivational classes, team building activities, et cetera. Hence, imprisonment helps to reform and rehabilitate the offender.

Besides that, the objective of punishment under the Islamic Law does serve as a form of "expiation", which means to expiate or clear one's sins. This is simply because, for a Muslim, a person who has committed a wrongful act is said to have committed a sin. Therefore, punishment is imposed on that person to expiate/clear his sins.

In a nutshell, the objectives of Imprisonment serve as a form of retribution, deterrence, prevention, reformation and rehabilitation and expiation under the Islamic Law and Malaysian Criminal Law.

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