Outline: TAZIR (Continued)

All type of crimes other than hudud and qisas in which their prohibitory provisions nor their
punishments are ever mentioned in the Quran or Sunnah
It is generally accepted that the punishments to be imposed on such offences are left to the
discretion of judge.

LEGALITY: The term tazir could not be found in Quran and Sunnah but its legality is agreed by
implication:

Quran: Surah An-Nisa 4.16. When two from among you have committed it (indecent act), then punish
them both. Verse 15 talk about offence of indecency, however, no punishment is prescribed by Allah
in verse 16 for this type of offence. Thus, the commandment of punish them both is left to the ruler or
community without specifying the punishment

Hadith:

No one will be punished with more than 10 stripes of the whip except where the offence is one for
which God has fixed punishment.

He who punished a convict with hadd punishment in a crime not liable to hadd, is a transgressor.

In case of those who fail to pay zakat, the Prophet order the person to be fined in addition to
compulsion to pay: Who gives it, will be rewarded by Allah, and who refuses to give it, front him it will
be taken, and we will take one-half of his property, not for Muhammad or his family but for the
Baitulmal

ESSENTIALS

1) Actus reus
The offender must have committed an act against the prescription of shariah and law

2) Mens rea
The offender must have committed the crime with his free will and intentionally
Authority:
o Surah Al Ahzab 33:5 - However, there is no blame on you because of the mistakes you may make
unintentionally (in naming them), but what your hearts have premeditated (matters greatly).
o Hadith: Deeds are counted according to the intention.

3) Legal elements
The crimes i.e. the prohibited acts have been sanctioned or enacted in the divine sources without
any prescription of punishment or by the legislature in the form of laws, acts or regulations
Maxim: No crime and no punishment without text
 Example of Quranic sanctions on Tazir crimes:
i. Prohibition of certain edibles: 5:3, 7:157
ii. Breach of trust: 4:58, 8:27, 4: 2
iii. Fraud in weights and measures: 83:1-3, 17:35
iv. Charging and taking interest: 2:275, 2:276, 2:278
v. Concealment of evidence: 2:283, 4:135
vi. False evidence: 25:72. 22:30
vii. Abuses, insults and defamation: 49:11, 6:108
viii. Bribery: 2:188, 5:42
ix. Gambling: 5:90-91
x. Spying and backbiting: 49:12, 60:1
xi. Entering others house without permission: 24:27
xii. Spreading of obscenity: 24:19, 17:32, 6: 151
xiii. Misuse of orphans wealth: 6:152, 4:2, 4:10
xiv. To gain others wealth by illegal means: 4:29
xv. Breach of contract: 5:1, 17:34
xvi. Slander: 4:112
xvii. Disobedience of a woman to her husband: 4:34

Punishment:

Tazir offences are punished in accordance with the qadhis view of the seriousness of the offence, the
offenders background, the public interest and welfare in deterring such conduct.

The head of state is also given the right to pardon on condition that the pardon granted should not be in
conflict or detrimental to the interest of society.

Punishments:

1- Whipping stripes
2- Imprisonment
3- Banishment
4- Fine
5- Death punishment
6- Admonition
7- Reprimand
8- Boycott
9- Seizure of property
10- Other punishments

Proof of crime under tazir can be made even through testimony of one witness if it is supported with
circumstantial evidence.
SYARIAH CRIMINAL JURISDICTION IN MALAYSIA

Introduction

Syariah courts in Malaysia are state courts created by respective State legislature, except for the
Federal Territories (FT) for which Parliament created the Syariah courts.
The state legislature, and in the case of the FT, the Parliament, shall also be responsible to enact
Islamic criminal offences.

Constitution of Syariah Ctts

Syariah courts in Malaysia have their roots in the Federal Constitution although they are state courts
Item 1 of the State List, Ninth Schedule Federal Constitution - empowers the state, or the
Parliament (in the case of FT), to create Syariah courts.
In all states the Syariah courts have 3-tier court system in which the trial may begin at the Syariah
lower courts and the decision may be appealed to the Syariah High Courts and finally an appeal can
be made to the Syariah Appeal Court.

Jurisdiction of Syariah Courts

Syariah courts have jurisdiction only over Muslims and, as State Courts, only within state
boundaries.
Subject matters that are within the jurisdiction of Syariah courts can be divided into civil and
criminal matters.

Criminal Jurisdiction of Syariah Courts

Have jurisdiction in respect of several offences such as gambling, drinking intoxicating drinks,
khalwat, ill treatment of wife, disobedience of wife, non payment of zakat, and disrespect of
Ramadhan.
List of Acts:
o Syariah Courts (Criminal Jurisdiction) Act 1965 (Act 355)
o Syariah Criminal Offences Act (for each states)
o Syariah Criminal Procedure Act 1997

Criminal Jurisdiction of the Syariah Courts and the Federal Constitution

Reference can be made primarily to the provision in Item 1, State List of the Ninth Schedule to the
Federal Constitution.
As far as criminal jurisdiction of the Syariah courts is concerned, there are issues from the provision
that need to be highlighted, which include:
1. Whether the jurisdiction of the Syariah courts is limited only to cover persons professing the
religion of Islam,
2. What is the extent of the power of the state legislature to create offences and punishment
against the precepts of Islam and the determination of matters of Islamic law and its doctrine,
3. Whether the Syariah courts shall have jurisdiction only over matters specified in the State List
and do not have jurisdiction over matters under the Federal List,
 4. Whether the Syariah courts shall only have jurisdiction in respect of offences in so far as
conferred by federal law.

Syariah Courts and Article 121(1A)

The 1988 constitutional amendment provides that the (civil High court has no jurisdiction over
matters that fall within the jurisdiction of the Syariah court.
The first case that decided on the effect of the amendment: Mohamed Habibullah bin Mahmood v
Faridah bte Dato Talib[1992] 2 MLJ 793
However, the issue was once again brought up in the case of: Sukma Darmawan Sasmitaat Madja v
Ketua Pengarah Penjara Malaysia & Anor [1999]2 AMR 2337, FC; [1998] 4 MLJ 742, HC; [1999] 1
MLJ 266, CA; [1999] 2 MLJ 241, FC.