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SNATCH THEFT IN ISLAMIC LAW AND MALAYSIAN CIVIL LAW: A COMPARATIVE

STUDY

BY

NUR MUNIRA ROSLAN

A dissertation submitted in fulfilment of the requirement for the degree of Master of Islamic Revealed Knowledge

and Heritage (Fiqh and Uṣūl al-Fiqh)

Kulliyyah of Islamic Revealed Knowledge and Human Sciences

International Islamic University Malaysia

SEPTEMBER 2016

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ABSTRACT

Snatch theft is one of the most serious and ugliest crimes rampant in Malaysia in recent times. It is of deep concern and a pressing threat to Malaysians due to the severity of its impact on the victims. The existing provisions governing the Penal Code seem ineffective and unreliable to address and curb this heartless crime.

Therefore the adoption and implementation of Islamic law is called for. The primary purpose of this study is to examine and evaluate snatch theft from the Islamic law and Malaysian civil law points of view. This study evaluates Malaysian Civil law and Islamic law in tackling and treating this new type of theft crime through apparent relationship such as definition, elements, and punishments. The discussion starts with a description of snatch theft and its common features followed by the discourse among Muslim jurists regarding snatch theft and whether it is al-sariqah or al-ḥirābah, which is liable to ḥadd punishment. This study also examines snatch theft offences in Malaysian Civil law under Section 378 and Section 390 of the Penal Code. Using a qualitative method in collecting data through library research and descriptive and comparative analytical approaches, it is found in the study that there are some undeniable similarities and differences between these two legal systems. On the basis of the results of this research it can be concluded that notwithstanding safety and prevention measures taken to curb snatch theft cases, the comparative analysis between these two legal systems highlights the need for proper legislation on snatch theft crime.

It is hoped that this study offers all rationales and useful recommendations to improve Malaysian Civil law on snatch theft offences as well as an orientation for future comparative law study.

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ii

ثحبلا صخلم

لش لا‌ة هاظ‌دعت

‌عشبأو‌ طخأ‌نم ج

ق سلا‌يئار تا

لا‌

تي

‌ شت ت

‌فِ‌اًصوصخ‌ ضالحا‌ا موي‌فِ‌

ايز لام قلقلا‌يرثي‌لش لا‌نأ‌امك،

ىدل‌فولخاو

‌بعشلا ز لالدا

‌اً ن‌ ي نم‌ه ‌جت ي‌الد

‌راثآ

‌ودبت‌ايز لام‌فِ‌ةمئاقلا‌ة ئا لجا‌ماك لْا‌نأ‌لىإ‌يرشت‌ة ضقلا‌هذهو‌،هاياحض‌ىل ‌ةم سج ءاضقلل‌اه ل ‌دامت لًا‌نكيّ‌لًو‌ةمراص‌يرغ ىل

،ةيّ لجا‌هذه ى ت‌اذلذو

‌ةرو ض‌ةث ابلا

عوج لا ابه‌لمعلاو‌ة ملَسلإا‌ةعي شلا‌ماك أ‌لىإ

‌.

بولطم‌ مأ‌اذهو هذ ن ت‌يتحتي

.

‌تيأت‌ا هو

لش لا‌ة ضق‌فِ‌ثحبتل‌ةساردلا‌هذه

‌نيدلدا‌نوناقلاو‌ة ملَسلإا‌ةعي شلا‌رو م‌نم‌هم قتو

،امه ب‌ةنراقلداو‌يز لالدا

‌‌فِ‌قبطي‌يذلا‌نوناقلاو‌جه لدا‌ل لحتب‌ه ف‌ةث ابلا‌موقت‌ث

‌يئا ج‌نم‌ديدلجا‌عو لا‌اذه‌ةلجاعم‌فِ‌يملَسلإا‌عي شتلا‌نوناقو‌،يز لالدا‌نيدلدا‌نوناقلا

‌،ة ساسلْا‌ صا علاو‌،في عتلا‌بس ‌فلَتخلًاو‌هباشتلا‌هجوأ‌للَخ‌نم‌تاق سلا ةظوحللدا‌تابوقعلاو

‌.

ن ‌فشكت‌نأ‌ةساردلا‌لواتح‌امك

،لش لا

‌هتاسمو‌،هفاصوأو‌،هت هامو

هعضو‌امو‌،هلو ‌ءاهقنلا‌ءآرأو‌،ةكترشلدا

‌ُّدَ ‌ه ل ‌قبط ي‌لهو ةبا لحا‌وأ‌ةق سلا

‌.

‌لىإ‌ةفاضإ

‌يئا لجا‌نوناقلا‌نم‌يز لالدا‌نيدلدا‌نوناقلا‌فِ‌لش لا‌ةناكم‌ن ‌ةساردلا‌هذه‌ثحبت‌،كلذ

‌يقر‌ةدالدا

"

"378

و‌

"

"390

‌.

‌جه لداو‌،تامولعلدا‌عجم‌فِ‌يئا قتسلًا‌جه لدا‌ثحبلا‌اذه‌عبتيو

‌ينب‌فلَتخلًاو‌هباشتلا‌هجوأ‌ضعب‌كا ه‌نأ‌ةساردلا‌جت تستو‌،نراقلداو‌يل لحتلا‌ينصولا يملَسلإا‌عي شتلا‌نوناقو‌يز لالدا‌نيدلدا‌نوناقلا .

‌تا صوتلا‌ع مبج‌ذخؤي‌نأ‌ةث ابلا‌لمأتو

ثحبلا‌فِ‌ةد نلدا‌تا اترقلًاو

‌ًلَضف‌،لش لا‌نم‌ّدحلل‌يز لالدا‌نيدلدا‌نوناقلا‌ يوطت‌لجأ‌نم

‌ًاعج م‌نوكي‌نأ‌ن لبقتسلدا‌فِ‌ة نوناقلا‌ةنراقلدا‌تاسارد‌فِ

.

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iii

APPROVAL PAGE

I certify that I have supervised and read this study and that in my opinion, it conforms to acceptable standards of scholarly presentation and is fully adequate, in scope and quality, as a thesis for the degree of Master of Islamic Revealed Knowledge and Heritage Fiqh Uṣul al-Fiqh.

………..

Ahmad Basri Ibrahim Supervisor

………..

Mohamad Asmadi Abdullah Co-Supervisor

I certify that I have read this study and that in my opinion it conforms to acceptable standards of scholarly presentation and is fully adequate, in scope and quality, as a thesis for the degree of Master of Islamic Revealed Knowledge and Heritage Fiqh Usul al-Fiqh.

………..

Luqman Zakariyah Examiner

This thesis was submitted to the Department of Fiqh and Uṣūl al-Fiqh and is accepted as a fulfilment of the requirement for the of Master of Islamic Revealed Knowledge and Heritage Fiqh Usul al-Fiqh.

………..

Mohamad Sabri Zakaria

Head, Department of Fiqh and Uṣūl al-Fiqh

This thesis was submitted to the Kulliyyah of Islamic Revealed Knowledge and Human Sciences and is accepted as a fulfilment of the requirement for the degree of Master of Islamic Revealed Knowledge and Human Sciences.

………..

Rahmah Ahmad Bt. H. Osman Dean, Kulliyyah of Islamic Revealed Knowledge and Human Sciences

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iv

DECLARATION

I hereby declare that this dissertation is the result of my own investigations, except where otherwise stated. I also declare that it has not been previously or concurrently submitted as a whole for any other degrees at IIUM or other institutions.

Nur Munira Roslan

Signature ... Date ...

PYT E

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v

RIGHT PAGE

INTERNATIONAL ISLAMIC UNIVERSITY MALAYSIA DECLARATION OF COPYRIGHT AND AFFIRMATION OF

FAIR USE OF UNPUBLISHED RESEARCH

SNATCH THEFT IN ISLAMIC LAW AND MALAYSIAN CIVIL LAW: A COMPARATIVE STUDY

I declare that the copyright holders of this dissertation are jointly owned by the student and IIUM.

Copyright © 2016 by Nur Munira binti Roslan and International Islamic University Malaysia. All rights reserved.

No part of this unpublished research may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without prior written permission of the copyright holder except as provided below

1. Any material contained in or derived from this unpublished research may be used by others in their writing with due acknowledgement.

2. IIUM or its library will have the right to make and transmit copies (print or electronic) for institutional and academic purposes.

3. The IIUM library will have the right to make, store in a retrieved system and supply copies of this unpublished research if requested by other universities and research libraries.

By signing this form, I acknowledged that I have read and understand the IIUM Intellectual Property Right and Commercialization policy.

Affirmed by Nur Munira binti Roslan

……..……….. ………..

Signature Date

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vi

COACKNOWLEDGEMENTS

First and foremost, Alḥamdulillāh, all praise and adorations are to Allāh the Most Gracious and the Most Merciful, with His Guidance and Blessings I am able to complete this dissertation, and peace and blessings be upon His beloved Messenger, Prophet Muḥammad

, His Family and Companions.

I would like to express my profound gratitude and respect to my supervisor, Assoc. Prof. Dr. Ahmad Basri Ibrahim for his patience, insightful guidance and encouragement in supervising this dissertation. I also gratefully acknowledge the assistance of Assoc. Prof. Dr. Mohammad Asmadi Abdullah for his advice and criticism particularly in Malaysian legal aspects. Without their invaluable comments, suggestions and advice, it would not have been possible for me to complete this dissertation. May Allah bless both of them and their families with the best reward here and in the Hereafter.

My deepest appreciation and thanks go to all lecturers who have taught me at the International Islamic University Malaysia, especially those from the Department of Fiqh and Usul al-Fiqh, and particularly Assoc. Prof. Dr. Hassan Ibrahim Hendoiu who encouraged me to study this topic, Prof. Muhammad Amanullah, Prof. Sayyid Sikandar, Assoc. Prof. Dr. Azman Mohd. Nor, Assoc. Prof. Dr. Bougheda Ghaliah, Prof Taher Mesawi, Assoc. Sabri Yunos, Assoc. Prof. Dr. Fuad Sawari, Assoc. Prof.

Affandi Awang Hamat and Dr. Mustafa Shamsuddin.

Most of all, my heartfelt gratitude and love go to my beloved mother Misslia binti Ismail for her inner strength, sacrifice, understanding, endless support and prayers not only towards the completion of this thesis but also throughout my life. I would also like to extend my gratitude and prayers to my late loving father who always inspired and encouraged me to be a knowledgeable person. My appreciation also goes to all my siblings, Roshidi Roslan, Zulhasri Roslan, Saiful Anwar Roslan, and Mohd. Fazlan Roslan and Muhammad Afizam Roslan for their support and encouragement. I am also grateful to all colleagues and friends especially Dr. Shamila Abu Hasan for her help and moral support.

Last but not least, this research is indebted to the help, support and encouragement of many people. Therefore, I would like to thank each and everyone who has assisted me directly or indirectly throughout the completion of thesis. May Allah  reward all of you and bestow His Mercy and Blessings upon all of us.

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vii

LIST OF STATUTES

Malaysian Penal Code (Act 574)

Section 378 of Malaysian Penal Code FMS Section 379 of Malaysian Penal Code FMS Section 382 of Malaysian Penal Code FMS Section 390 of Malaysian Penal Code FMS Section 391 of Malaysian Penal Code FMS Section 395 of Malaysian Penal Code FMS Section 397 of Malaysian Penal Code FMS Penal Code (Amendment) Bill 2004 Act (A1273)

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viii

LIST OF CASES

Public Prosecutor v Thomas Bilong & Ors. [2009] MLJU 1650 Muhammad Safriadi v Public Prosecutor [2011] MLJU 1405 Lim Kim Poh v Public Prosecutor [2000] 8 CLJ 328

Gunalan a/l Visuanathan v Public Prosecutor [2010] 7 MLJ 490

Ahmad Rashidi bin Zainol & Anor v Public Prosecutor [2014] 9 MLJ 562

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ix

TABLE OF CONTENT

Abstract... i

Abstract in Arabic... ii

Approval Page... iii

Declaration Page... iv

Copyright Page... v

Acknowledgements... vi

List of Statutes... vii

List of Cases... viii

List of Tables... xi

List of Figures... xii

CHAPTER 1: INTRODUCTION... 1

1.1 Introduction... 1

1.2 Problem Statement... 3

1.3 Research Questions... 4

1.4 Research Objectives... 5

1.5 Significance of the Study... 5

1.6 Research Scope... 6

1.7 Research Methodology... 6

1.8 Literature Review... 8

CHAPTER 2: CRIME AND PUNISHMENT IN ISLAM... 13

2.1 Definition of Crime... 13

2.2 Elements of Crime... 15

2.3 Definition of Punishment... 19

2.4 Punishment in Islam... 20

2.5 Objectives of Punishment... 30

CHAPTER 3: SNATCH THEFT UNDER THE LAW OF AL-SARIQAH AND AL-ḤIRᾹBAH... 35

3.1 Snatch theft under Islamic law... 35

3.1.1 Definition of snatch theft... 35

3.1.2 Snatch theft as al-Nashl

) لش لا (

... 38

3.1.3 Elements of snatch theft crime……… 40

3.2 Snatch theft under the law of al-Sariqah……… 43

3.2.1 Definition of al-Sariqah………. 43

3.2.2 Elements of al-Sariqah……….. 45

3.2.3 Snatch theft punishment as al-Sariqah……… 55

3.3 Snatch theft under the law of al-Ḥirābah

) ةبا لحا (

………... 57

3.3.1 Definition of al-Ḥirābah……… 57

3.3.2 Elements of al-Ḥirābah……….. 58

3.3.3 Snatch theft punishment as al-Ḥirābah………... 62

3.4 Snatch theft under al-Taʻzīr (discretionary punishment)………...…... 66

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x

3.5 Snatch theft punishment between al-Sariqah, al-Ḥirābah, and al-

Taʻzīr: A resolution………... 69

CHAPTER 4: MALAYSIAN CIVIL LAW ON SNATCH THEFT CRIME……….... 73

4.1 Theory of Crime and Punishment in Malaysian Civil law... 73

4.1.1 Definition of Crime... 75

4.1.2 The Concept of Criminal Liability………... 77

4.1.3 Definition of Punishment... 79

4.1.4 Objectives of Punishment in Malaysian Civil law………….. 81

4.2 Snatch theft under Malaysian Civil law………. 84

4.2.1 Definition of Snatch theft crime under Malaysian Civil law.. 84

4.2.2 Snatch theft as Theft……….... 85

4.2.2.1 Definition of Theft………... 85

4.2.2.2 Elements of Theft……….. 85

4.2.3 Snatch theft as Robbery………... 88

4.2.3.1 Definition of Robbery……… 88

4.2.3.2 Elements of Robbery………. 89

4.3 Snatch theft between Theft and Robbery: An Analysis………. 92

4.4 Cases and Implementation... 95

CHAPTER 5: A COMPARATIVE STUDY OF SNATCH THEFT IN ISLAMIC LAW AND MALAYSIAN CIVIL LAW………... 104

5.1 Similarities………. 104

5.1.1 General Similarities………. 104

5.1.2 Specific Similarities……… 109

5.2 Differences………. 111

5.2.1 General Differences……… 111

5.2.2 Specific Differences……… 117

5.3 Harmonisation of the Islamic law and Malaysian Civil law……….. 121

CHAPTER 6: CONCLUSION AND RECOMMENDATIONS... 125

6.1 Conclusion………. 125

6.2 Problems and Issues………... 128

6.3 Recommendations……….. 132

BIBLIOGRAPHY……….. 139

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xi

LIST OF TABLES

Table No. Page No.

1.1 Elements of Snatch theft and al-Sariqah 54

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xii

LIST OF FIGURES

Figure No. Page No.

1.1 Relationship between Snatch theft with al-Sariqah and al-Ḥirābah 71

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1

CHAPTER ONE INTRODUCTION

1.1 INTRODUCTION

Crime is a serious and continuous threat for nations and countries all over the world.

This dangerous social phenomenon goes a long way in affecting the sustainability of human life and has evoked a sense of fear, insecurity and panic among the public. It appears in various forms which get more advanced and cunning along with human development.

Crime is a problem faced by every country in the real world. Malaysia is among the countries dealing with a serious crime committed against her people and their possessions known as snatch theft. The crime of snatch theft is one of the distortions of human life; snatch thieves not only take and seize the property of others, they also cause serious injuries, trauma, permanent loss and damage, and in some cases they cause death.

There have been many dreadful incidents of snatch theft reported in Malaysia. It is more than pedestrian stealing crime because it employs different tactics to attack innocent victims. The latest victims of this crime as reported in the news are two nuns who were attacked with helmets outside a church in Seremban in which one of them died after falling into a coma.1

Although the latest statistics from Bukit Aman show the percentage of high profile crimes such as murder and armed robberies is declining, this does not apply to snatch theft crime. Recently, Home Minister Datuk Seri Dr Ahmad Zahid Hamidi ___________________________

1 “Attacker caught on Camera,” The Star, Tuesday, 20 May 2014, 11.

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2

admitted that awareness against snatch theft crime has not been successful as the crime has increased from 7.5% to 10.5% lately.2 It is still considered as a horrific street crime due to the detriment and fatalities faced by the victims.

According to Malaysian Civil law, there are no adequate provisions or legislation to regulate the crime of snatch theft. Malaysian still have involves legal discussion as it is addressed to both the elements of “theft” under section 378 of the Penal Code and the elements of “robbery” under section 390 of the Penal Code and administered by Police charge under section 392, 394 and 397 of Penal Code which allows for canning and jail terms. The present law does not sufficiently address this gruesome crime. President of the Muslim Lawyers Association, Malaysia, Tan Sri Abu Zahar Ujang said that the government should use a serious legal approach, and make a specific provision for the crime of snatch theft which gives a clear explanation of the crime and its punishment.3

Similarly, a memorandum signed by 200 000 people has been made to urge the government to draft specific and separate provisions in the Malaysian Penal Code for snatch theft. Chairman of Community Policing Association (CP), Kuan Chee Heng claimed that the existing law in Malaysia fails to draw an offender‟s attention, and there is no mandatory prison term. Snatch theft also considered as the most dangerous crime today because its effects befall so many people and it can be committed at any chance, time, and place.4

___________________________

2 “Op Cantas Berkas 794 Individu,” Utusan, 11 June, 2014, via Utusan Online,

<http://www.utusan.com.my/utusan/Parlimen/20140611/pa01/OpCantasberkas79,414individu#ixzz3531oVX78>

3 Mohamad Shafi Mat Isa, “Wujudkan Akta Khusus Ragut,” Utusan, 8 May 2009, via Utusan Online,

<http://www.utusan.com.my/utusan/info.asp?y=2009&dt=0508&pub=Utusan_Malaysia&sec=Dalam_N egeri&pg=dn_10.htm#ixzz3FcdNyjbx2>

4 Nur Farhana Abdul Manan, “ Saran Kenakan Hukuman Berat Jenayah Ragut,” Sinar Harian, 29 November, 2013, via Sinar Online, <http://www.sinarharian.com.my/saran-kenakan-hukuman-berat- jenayah-ragut-1.225558>

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Thus, many people including ministers, lawyers, judges, NGOs, police, and members of the public insist on the need for immediate and sufficient punishments.

On the other hand, with regard to the snatch theft, in Islamic law, like the Malaysian Civil law, the offence also has an element of Sariqah (theft) and Ḥirābah (robbery) which categorised under the prescribed and fixed punishment or Ḥudūd as well as Qiṣāṣ (retaliation) in the Islamic Penal System. Islamic criminal law aims at securing human welfare by offering vigilant consideration of each matter through its general principles and comprehensive rules. It is concerned about the varying conditions of society as well as the consistency and constancy of human life.

Unfortunately, due to misinterpretation and lack of understanding of Islam itself, Islamic law is perceived as a violent and barbaric system of regulations that ignores human rights. It becomes saddeningly worse when Muslims themselves have misconceptions of the Islamic legal system.

Therefore, because of the false interpretation of Islamic law, this study establishes a comparative study between Islamic law and Malaysian Civil law on snatch theft in order to show the wisdom of Islamic Law, thus refuting claims that Islamic law is barbaric and violates human rights. This study looks at description of snatch theft in both Islamic law and Malaysian Civil law and provides an adequate comparison between them.

1.2 PROBLEM STATEMENT

Snatch theft is a new dimension of crime. It occurs rampantly in Malaysia and causes casualties as well as fatalities. Despite the existence of laws and punishment within the Penal Code and all the safety and sufficient precautions that have been adopted by the authorities and everyone in society, the crime is continuously taking place within

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4

society. This shows that the present and existing laws have not achieved their desired effect of deterring and preventing the crime.

This circumstance gets significant attention from many quarters including ministers, judges, lawyers, NGOs and members of the public whereby they believe that a harsher and severe punishment must be meted out.

Similarly, there is misunderstanding and prejudice against the implementation of Islamic criminal law in Malaysia. In discussing Islamic criminal law in Malaysia some go to the extent of saying that the implementation of Ḥudūd would only bring a great human rights disaster as the punishments are very cruel and inhuman or degrading. In fact, the severity of Ḥudūd punishment is to serve as a preventive measure and deterrence from committing crimes in the first place. Ḥudūd brings peace, order, and disciplined behavior as people know that the punishment that awaits them on committing a crime is severe.5

Therefore, throughout the discussion the researcher attempts to construct a comparative analysis between Islamic law and Malaysian Civil law in referring to snatch theft crime cases. This includes the definition of snatch theft, its elements, punishment and its position in these two legal systems.

1.3 RESEARCH QUESTIONS

Throughout this study, the researcher tries to answer the following questions:

1. What is the definition of snatch theft in Islamic law and Malaysian Civil law?

2. What are the elements of snatch theft in both Islamic law and Malaysian Civil law?

___________________________

5 Ashgar Ali Ali Mohamed, “Implementation of Hudud (or limits ordained by Allah for serious crimes) in Malaysia”, International Journal of Humanities and Social Science, vol. 2, no. 3 (2012): 241- 244.

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5

3. What are the punishments for snatch theft offences in both Islamic law and Malaysian Civil law?

4. What are the similarities and differences between Islamic law and Malaysian Civil law on the offence of snatch theft offence?

1.4 RESEARCH OBJECTIVES

The objectives of writing this dissertation are as follows:

1. To have a clear vision of snatch theft and its definition under Islamic law and the Penal Code applied in Malaysia.

2. To identify the elements of snatch theft offences in both Islamic law and Malaysian Civil law.

3. To reveal the punishments for snatch theft offences as stipulated in the Islamic penal system and the Malaysian penal system.

4. To critically exam the similarities and differences between Islamic law and Malaysian Civil law on snatch theft.

1.5 SIGNIFICANCE OF THE STUDY

Snatch Theft is a grave concern in Malaysia today. It is considered as a new form of property interference and its legal discussion is still ongoing. Some studies have been done studies written in a similar manner have yet to be found.

It is believed that this study is a further in-depth research in comparative law especially between Islamic law and Malaysian Civil law. In order to provide a significant comparison between Islamic law and Malaysian Civil law relating to snatch theft, the pertinent provisions of Islamic law and Malaysian Civil law will

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be examined. The comparative analysis between these two systems of legislation will highlight the need for proper legislation on the crime of snatch theft.

This study provides further suggestions to improve the law relating to snatch theft in Malaysia. Furthermore, it is recommended that Malaysian Civil law espouse punishment as delineated in Islam as a solution in determining and inflicting the appropriate sentences for snatch theft. It is strongly believed that this study contains valuable input and is a useful reference that will benefit the Islamic and Malaysian systems of law.

1.6 RESEARCH SCOPE

This study focuses on analyzing the viewpoints of Islamic law and Malaysian Civil law under sections the 378 and 390 of the Penal Code regarding snatch theft offences.

It discusses the definition of snatch theft, its elements and punishments. In addition, this research provides a comparative analysis of snatch theft between these two legal systems.

1.7 RESEARCH METHODOLOGY

In writing this research, the researcher uses certain methods to complete the work. The researcher will be using the qualitative and analytical method as follows:

1. Library research, textual analysis and internet browsing.

In order to know the Islamic legal purview on snatch theft, the current research involves primary textual references from the Qurʼān and legal texts of Ḥadīth. This is followed by analysis of relevant data in textual documents comprising classical scholars‟ books, particularly the writing of scholars from the four major schools which provide diverse views

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concerning the Islamic legal sytem. The study also refers to contemporary works and opinions dealing with criminal aspects of the Islamic legal system that can be accessed through many publications.

Meanwhile, to describe snatch theft in Malaysian Civil law, all the necessary and related information has been referred to including academic journals, Malaysian Law Journals, Criminal Law Journals, websites, reports, court cases, newspaper articles, and conference proceedings.

2. Deductive, Inductive, and Comparative methods

Inductive and deductive methods are used in order to identify snatch theft in Islamic Law and Malaysian Civil law. The researcher uses analogical reasoning to reach inductive discovery the place of snatch theft in Islamic law by comparing it with other related crimes existed and clearly prescribed in Islamic law. Meanwhile, in explaining snatch theft under the purview of Malaysian Civil law, the deductive method has been used through identification of all relevant data to arrive at a specific conclusion.

In addition, the research engages the descriptive comparative method whereby the researcher studies patterns of snatch theft in Islamic law and Malaysian Civil law. Here, a method of agreement and a method of differences have been used to identify, analyse and explain the similarities and differences between Islamic law and Malaysian Civil law. Moreover, the researcher establishes qualitative comparative analysis in explaining and interpreting diverse outcomes between Islamic law and Malaysian Civil law that focus on the crime of snatch theft.

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8 1.8 LITERATURE REVIEW

Snatch theft is a new form of crime in Malaysia, gaining notoriety day by day. Due to the newness of the crime, the researcher faces a situation where it is difficult to obtain a precise definition of the crime from either Islamic law or Malaysian Civil law. This predicament is also due the fact that the term “snatch theft” itself is a term given by the media which describes it as a criminal act of forcefully stealing from a pedestrian while employing rob and run tactics.6

Therefore, to get a clear definition of snatch theft, the researcher has decided to learn the definition through associated terms usage in the Arabic-English dictionary and English-English dictionary. Meanwhile, in order to get a clear picture of its nature and characteristics in the Islamic law, the researcher will adopt several writings from contemporary Muslim jurists. There are a limited amount of resources from the early traditional writings of Muslim scholars that discuss the crime particularly. It was mostly discussed in line with the general principle of theft and robbery.

As a preliminary reading, the researcher refers to the published Arabic language book “Jarāʼim al-Sariqah fī al-Sharīʽah al-Islāmiyyah wa al-Qānūn al- Waḍʽī‖ (Theft crime in Islamic law and Secular law) written by ʽAbd al-Khāliq al–Nawāwī7. The author has explained and discussed theft, including its definition, elements, and punishments. He also has provided a comparative analysis of theft between the Islamic law and Secular law. The researcher refers to this book because it is relevant to the subject matter, where the present study benefits from its systematic classification and discussion of Islamic law and punishment related to theft and its characteristics.

However, this book only focuses on theft offences as ordinarily understood. Thus, the ___________________________

6 “Snatch Thieves”, Study Mode Research, 20 November, 2010, http://www.studymode.com/essays/

Snatch-Thieves- 485071.html

7 „Abd al-Khāliq, al-Nawāwī, al-Sariqah fī Sharīʽah al-Islāmiyyah wa al-Qānūn al-Waḍʽī, (Beirūt:

Manshūrāt al-Maktabah al-„Aṣriyyah, 1980).

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present study approaches the issue of snatch theft differently and extensively, since snatch theft is not just considered as an act of stealing but it also combines the elements of robbery as well as homicide and injury.

The researcher has also reviewed the work of Abū Rūs, Aḥmad Basyūnī which is written in Arabic entitled ―Jarāʼim al-Sariqāt‖ (Theft Crimes) 8 which deals with the legal system for theft crime, the provision of the courts, and subjects of the offence, which include the reason for conservation issues on theft cases that have highlighted cases occurring mostly in middle eastern countries. The author also has suggested a few methods that should be taken to curb contemporary crimes including snatch theft, pick-pocketing, and house and shop theft. Even so, the discussion of snatch theft in this writing is not carefully observed which is what the present research intends to do.

The current research discovers the reality of snatch theft cases in Malaysia and the governing law on snatch theft which is codified in Malaysian legal system; moreover, this research also looks at the Islamic law‟s standpoint towards snatch theft and establishes a comparison between these two legal systems.

A careful analysis and illustration of the philosophy and theory of punishment in Islamic law in the light of contemporary approaches was undertaken by Mohamad S. El-Awa in his writing, ―Punishment in Islamic Law: A Comparative Study‖9. The author is concerned with the discussion in classical treatises of six offences included in the fixed punishment (Ḥudūd), and has established a comparative analysis among jurists. He has also approached the Islamic concept of retaliation (Qiṣāṣ), and the concept of discretionary punishment (Taʽzīr). There is also an explanation of the method of proof relating to the law of evidence in criminal cases. The concept of Islamic punishment for snatch theft has not been disscussed by the author, nor has the ___________________________

8 Abū Rūs, Aḥmad Basyūnī, Jarāʼim al– Sāriqāt, (Iskandariah: Dār al-Maṭbūʽāt al-Jāmiʽyyah, 1987).

9 Mohamed S. El–Awa, Punishment in Islamic Law: A Comparative Study, (USA: American Trust Publications, 2000).

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Malaysian Civil law. The present work is inclusive of analyzing Islamic law and Malaysian Civil law which focuses on snatch theft as a contemporary subject matter.

A dissertation entitled ―Pengelasan Jenayah Ragut menurut Syariah Islam‖

(Classification of Snatch theft crime according to Islamic Syariah) written by Emil Azril Bahari Mohd Nor10 is a useful writing for this researcher‟s study as it relates closely to this research. This Master‟s thesis with six chapters basically has emphasized theories and concepts of punishment in Islam, which are discussed in the initial chapters. Throughout the writing, the author provides discussions and evaluations of the appropriateness of the fixed punishment (Ḥudūd) concept, discretionary punishment (Taʽzīr) and retaliation (Qiṣāṣ), corresponding to the crime of snatch theft. At the end of the writing the author finds a new method, namely,

“Tangga Hukuman Progresif‖(progressive punishment step) for determining the sufficient punishment for the snatch theft offender based on the consequences that befall the victims. The current research benefits a lot from this book in identifying the characteristics or elements of snatch theft and its possible punishment according to Islamic law. However, a discussion of snatch theft in existing Malaysian Civil law is absent. The author does not discuss the crime within the Malaysian legal system‟s purview and no comparison is made between Islamic law and Malaysian Civil law.

However, the present study covers the issue and provides comparative analysis of the snatch theft from both Islamic law and Malaysian Civil law perspectives.

Furthermore, writing by Lee La Hwai in ―Jenayah Ragut: satu kajian tentang Kesedaran Wanita di Wangsa Maju” (Snatch Theft crime: A study of women‘s awareness in Wangsa Maju)11 provides a description of snatch theft as a crime that makes women as victims based on cases that have occurred especially in the Wangsa ___________________________

10 Emil Azril Bahari Mohd Nor, “Pengelasan Jenayah Ragut menurut Syariah Islam,‖ (Master thesis, University of Malaya, 2005).

11 Lee, La Hwai, “Jenayah Ragut: satu kajian tentang Kesedaran Wanita di Wangsa Maju”, (Master thesis, University of Malaya, 2005).

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Maju area. This book contains information on how women react and respond to this crime. The author also suggests some safety measures for avoiding this crime, and urges women to be cautious so that they will not become a victim. The study does not discuss anything concerning law relating to snatch theft issues as the present research intends to do. Thus, this present study, as new research on snatch theft issues, provides legal discussion of both Islamic law and Malaysian Civil law.

In addition, the researcher has obtained a general explanation of Islamic law in the series of articles by Abdurrahman al-Muala, published under the title ―Crime and Punishment in Islam‖12which provides knowledge of Islamic regulations in combating societal crimes. It comprises an Islamic approach in dealing with crime, the unique features of the Islamic penal system and its objectives, and various forms of punishment in Islam. This was an essential piece of writing for the researcher to acquire basic knowledge of the Islamic legal system mostly as a foundation to the main subject matter. Therefore, the current study has additional value in the study of Islamic law which discusses new forms of crime and develops a comparative analytical assessment of Islamic law and Malaysian Civil law.

An argument on snatch theft crime is also highlighted in a journal article entitled ―Ẓāhirat al-Nashl wa Atharuhā al-Ijtimāʽiyyah‖. (Pick-pocket/Snatch theft and its social impacts)13 This Arabic language article, written by Ibrāhīm Muḥammad al-Zaban has discovered expands of the snatch theft crime in Saudi Arabia; it gives a description of the snatch theft, its elements and characteristics, and its impact on the economy. The writing however addresses snatch theft neither in terms of the perspective of Islamic law nor Malaysian Civil law as this research intends to do.

Nonetheless, the present study refers to this writing to get an idea of the snatch theft ___________________________

12 Abdul Rahman al-Muala, “Crime and Punishment in Islam,” The Religion of Islam http:

www.islamreligion/articles/253/viewall/ (accessed 14 July, 2013).

13 Al-Zaban, Ibrāhīm Muḥammad, Ẓāḥirat al-Nashl wa Atharuhā al-Ijtimāʽiyyah, (Mecca: Naif Arab University for Security Sciences, 2007).

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