Abstract

The non-conformity in the use of the terms concerning children and their age in the Shariah criminal legal system in the states in Malaysia has given rise to legal conflict as well as causing difficulties in terms of the execution and enforcement of shariah legal crime and its procedures in each of the afore stated states. The existing laws show that there exists non-dissidence in determining the position of children which conflicts with syariah crime. The term young offender was duly provided in the shariah procedural enactment but not in states’ shariah criminal law. Similarly, the term ‘baligh’ was defined and the position of non-baligh children was elucidated in the said law but not under the shariah procedural enactment. Hence, this articles serves to lay down the provisions of both enactments concerned and to compared them with the shariah criminal principles in terms of ascertainment of age and the position of children which are in conflict with the shariah criminal law through the ulama and Islamic fuqaha’s standpoint. This approach was adopted to determine as to what extent are the distinctive provisions shariah-compliant. This article unmasks the lacunae on shariah criminal law in the states particularly those pertaining children, conflicting with shariah. This finding raises the possibility re-examination as to the existing provisions. The analysis depicts the fact that each ‘baligh’ provision is duly reinforced by the ulama and fuqaha’s views which contribute to khilaf in this case. Correspondingly, the provision in shariah procedural enactments in Malaysia that a young offender is one who is not less than 10 years of age and not more than 16 years old is still very much debatable, considering the provisions on baligh. Thus, the detailed re-examination of the shariah criminal legal system pertaining children which conflicts with shariah criminal law is very much necessary for the justice of all of the parties concerned.

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