Searching for the Benchmark in the Administration of Islamic Criminal Law: Malaysia Experience

Abstract

Administration of Islamic criminal justice system covers at least three main areas namely substantive law, court system and procedures on legal enforcement as well as punishment that may be imposed based on sharia. In a federal system of government practised in Malaysia, that conferred the power on the administration and enforcement of Islamic Criminal law to the state, agencies involved is made up of mostly officers from the state agencies, among others Enforcement Officer in the Department of Religious Affairs, Sharia Prosecutors, Sharia Counsel and Sharia Court Judge at the State Sharia Judicial Department. At the same time, state agencies are assisted by federal agencies such as Royal Malaysian Police, Sharia Judiciary Department Malaysia and the Prisons Department Malaysia. The competence and efficiency of Sharia administration of justice especially in criminal matters therefore is not the responsibility of the state alone but depends on the cooperation between the state and federal agencies. The administration of Islamic Criminal justice is subject to observation of the rights protected under the Federal Constitution. Besides observing the rights conferred in the Federal Constitution, the implementation of Islamic criminal law has to meet maqasid sharia which includes the preservation and protection of one religion, life, intellect, family honour and property. The question that can be asked is, what minimum criteria must be present to enable the administration of sharia criminal law to meet maqasid and fundamental rights protection, and therefore not devastating to the Muslim and society? This paper attempts to look at the appropriate benchmarks or minimum criteria that Sharia officers must possessed, and supports that the government need to provide for effective administration of Islamic criminal law. This paper will not discuss the question of fiqh but focused on the administration of Islamic criminal law. In addition, this paper also briefly looks at the issues of human rights and international law that would be involved in the administration of Islamic criminal law in Malaysia.