A STUDY ON SYARIAH WHIPPING AS PUNISHMENT FOR DRUG DEPENDANTS IN MALAYSIA

Transcription

1 A STUDY ON SYARIAH WHIPPING AS PUNISHMENT FOR DRUG DEPENDANTS IN MALAYSIA Yuhanza Binti Othman Lecturer, Faculty of Law, UiTM Melaka Ida Rahayu Binti Mahat Lecturer, Faculty of Law, UiTM Melaka Ekmil Krisnawati Erlen Joni Lecturer, Faculty of Law, UiTM Melaka ABSTRACT The government has introduced variuos programmes to rehabilitate and give treatment to drug dependant. However statistic from Agency Anti Dadah Kebangsaan (AADK) has shown that a number of drug dependants has increased annually. It is high time for the government to review and enhance the punishment for drug dependants.the Drug Dependants (Treatment and Rehabilitation) Act 1983 is silent on imposing punishment on a first offender. Therefore, this paper will examines on imposing whipping as punishment for drug dependant as provided by syariah law. Adopting the application of qiyas, the rule and punishment of drinking liquour which is stated in the Quran (5:90) and the Hadith is extended to consuming drugs. This paper seeks to discuss altenative methods to deter the public from drug abuse and at the same time to decrease the government expenditure in providing rehabilitation programmes and services for drug dependants. INTRODUCTION The word punishment or in Arabic word refers to uquba which is derived from the the verb aqaba or to punish. It is defined as the restriction stipulated by Allah to restrain mankind from doing what Allah has prohibited for the benefit of the public at large against disobeying the commandments of Allah. (Zulkifli, 2006). Syariah law has prescribed several aims of imposing punishment on a person who commits a crime. The first is to reform and educate the criminal as well as the public from committing similar crime in the future. Secondly is retributive, where according to Al-Baqarah: 178, Allah says, O you who belive! Prescribed for you is retribution in case of murder This aim is to punish the criminal with the same injury that he caused to the victim (Hosein, 2008). Lastly, is deterrence which is to prevent the public from committing similar crimes by leaving a lasting impact with a severe punishment. It is hoped that inflicting punishment will be a threat for those who have an intention to commit a crime. Islamic punishment is categorized into three: Hudud, Qisas and Ta zir. Hudud refers to crimes in which punishment is expressly stated in the Qur an and the Hadith. Examples of hudud crimes are: adultery, theft, drinking liquor, apostacy and armed robbery. Qisas, another type of punishment laid down by the Qur an and the Hadith, is also known as retaliation that is: inflicting a similar injury on a criminal as the injury he inflicted on his victim (El-Awa M. S., 1982). Examples of qisas are murder and battery. The last type of punishment is Ta zir which is the verbal noun of the verb azzara. It means to repel and to prevent (Zulkifli A. H., 2006). Ta zir is a form of modern punishment implemented by majorities of Muslim countries. Imprisonment, whipping and fines are the common types of ta zir.

2 In Malaysia, administration of matters concerning Islam and the people professing the religion of Islam (Muslims) are governed by the State and not the Federal government. This is by virtue of article 74 of the Federal Constitution which segregates the powers of the Federal and State government. Islamic law falls under the State List and thus, only the State Legislature is empowered to legislate matters concerning Islam. While the State Legislative Assembly enact laws concerning Islam and Muslims, the Syariah courts has the jurisdiction to adjudicate cases in which the parties are Muslims. Criminal offences which can be adjudicated by the Syariah courts, however, are restricted to those offences against the percepts of Islam (Farrar, 2013).The infliction of punishment in Malaysia is categorized into two types that are punishment in Islamic law and punishment in conventional or civil law. It has long been established that drug abuse is against the principles of Islam. The Fatwa Committee of National Council of Islamic Religious Affairs in Malaysia has announced that any form of drug abuse is prohibited.on 19 th February 1983, drug addiction was declared to be a main threat to national security. It causes social problem and is also a threat to national security and integrity (Kamaruddin, 2007). The misuse of drug is not mentioned in the Qur an and the Hadith. Therefore, qiyas is adopted in order to determine the hukum for drug consumption and to establish the relevant punishment for those who consumed drugs. This paper analyzes the application of qiyas on drugs and examines the appropriateness of syariah whipping as punishment for drug dependants. EXISTING LAW FOR DRUG DEPENDANT IN MALAYSIA Drug Dependants (Treatment and Rehabilitation) Act 1983 (DDA) was passed on 15 April 1983.It has 30 sections underlying methods of treatment, legal custody and procedures dealing with drug dependants. The categories of drug dependants discussed are the drug dependants under court orders and those who voluntarily recruited themselves to be admitted to rehabilitation centres. The DDA provides three types of supporting centre; namely rehabilitation centre, aftercare and day care centre. The new approach which eliminates regimented, tough and rugged method was introduced and aimed to be more humanistic and empathy. Basically there are two types of punishment imposed on drug dependants under Court orders. Firstly, to undergo treatment and rehabilitation at Rehabilitation Centre and/or to undergo supervision at the place specified by the officer. Acording to Section 6(1)(b) of the DDA, a person who has undergone treatment and rehabilitation shall be put under supervision for two years with certain conditions such as the person must not leave the area where he resides and the person shall not consume or use dangerous drug. Those who fails to follow section 6(1)(b) of the DDA shall be guillty of an offence and shall be punished with whipping not exceeding three strokes or imprisonment for a period not exceeding three years or both pursuant to section 6(3) of DDA. The DDA only focused on the long term treatment and rehabilitation without having an intention to punish the drug dependant. First timer offenders are always treated and rehabiliated under various programs from Agensi Anti Dadah Kebangsaan (AADK). Whipping is inflicted as a punishment on drug dependant only if they were convicted under the Dangerous Drugs Act Section 39C of the Dangerous Drugs Act 1952 provides that a person who has prior admissions or convictions under section 10(2)(b) and section 15(1)(a) shall be be punished with imprisonment for a term which shall not be less than five years but

3 shall not exceed seven years, and he shall also be punished with whipping of not more than three strokes. Implementing a light punishment gives the impression that the crime is not grave. The message sent out to the public and in particular to our youth, is that drug dependency is a misdemeanor which only affects the drug abuser and does not have any impact on the society. With drugs being produced in a more elegant package or names described as designer drugs, the youth is more vulnerable to the danger of drug dependency. Purchasing dangerous drug is made easier with the advancement of technology. It has been suggested that by making drugs available and unlimited supply, drug trafficking would be reduced and drug related offences would be curbed (A.Nadelmaan, 2014). We strongly disagree with the move to decriminalize dangerous drugs because uncontrolled supply of dangerous drugs would only worsen the situation. The punishment of not more than three strokes of whipping appears to be insignificant considering the damage caused by drug dependency to the society. Drug addiction leads to social instability and is often associated with other crimes such as armed robbery, gambling, house-breaking and prostitution. For instance, in the case of Boon Long v PP [2009]1 LNS 1613, the appellant had refused to follow his treatment and rehabilitation program. He was found to be in possession of a piece of aluminum that had been fashioned into a sharp weapon that could cause danger. This case shows that drug dependency and the refusal of the accused to be treated led him to commit further crimes. ISLAMIC PUNISHMENT: QIYAS During the life time of the Prophet, legal reasoning or analogical views were not relevant because the great Prophet will provide and explain the specific ruling for the issues raised. However, after the demise of the Prophet, there were many new legal issues raised amongst the companions and the next generations. Ijma and qiyas were developed by the Muslim jurists to enable them to find solutions for each new legal problems faced by them. Muhammad Ibn Idris al- Shafii has formulated the concept of legal reasoning or analogy where this could be seen in his book name Ar-Risala. According to Ar-Risala page 477 mentioned that, whatever befalls a Muslims is regulated either binding rule, or by a positive inference. So, if there is a specific ruling, then it has to be followed. But in the case there is no specific ruling available, the jurist has to deduce it by exercising his ijtihad and ijtihad is Qiyas. Qiyas emerged during the time of al-shafi i and consequently it helps to encounter any new legal issue raised and it was gradually accepted as the fourth source of law in Islamic country. Literally qiyas means measuring or ascertaining the length, weight or quality of something (Hasan, 1983). It also means comparison-equality or similarity between two things. Abu Sulayman in his book wrote that, qiyas meanst to seek similarity between new situations and early practices, especially those of the Prophet (Al-Salami). Al-Ghazali defined qiyas as to accord a known case in establishing a law for (both of) them or negating it from them on the basis of a common link (between them), which link causes the establishment of the rule or the

4 quality relating to them, or negating it from them. Moreover, qiyas provides detailed understanding derived from the Qur an and the Hadith, covering thousand problems faced by Muslim (Rahman, 1999). Qiyas will extend the original case which has been regulated by the Qur an and the Hadith. There are four pillars of qiyas as developed by the early jurist; asl ( original case), far (parallel case), hukm ( the rule of the original case) and illah ( effective case). The first pillar of qiyas is Asl refers to the sources, such as the Qur an and the Hadith which stipulated a particular ruling. It also means the subject matter of the ruling (Alharbi, 2011). Asl must be a shar i ruling, permanent not abrogated, rationale and it should not have been established by anology (Kamali, Issues in Legal Theory and Prospect For Reform, 2001). Example is prohibition of drinking liquor as mentioned in Surah Al-Ma idah 5: The second pillar of qiyas is Far or the new case on which ruling is to be given such as drug. The Far must not covered by the Qur an and the Hadith and the application of qiyas to a new case must not contravene or overruling the text of the Qur an and the hadith (Kamali, Al Qiyas (Analogy) and its Modern Applications).Furthermore, the third pillar refers to the hukm which means the ruling either a command or a prohibition which allocated by the Qur an and the Hadith and it will be extended to a new case. Among the conditions of the hukm are, it must be a practical shar ruling, it cannot be in the area of belief and it must be operative, which means that it has not been abrogated and it must be rationale. The last pertinent pillar is the effective cause or the illah. According to majority of mazhab illah is an attribute of the asl which is constant and evident and bears a proper (munasib) relationship to the law of the text (hukm). The conditions of the illah are, firstly, it must be a constant attribute (mundabit) which is applicable to all cases, persons, time, place and circumstances. Secondly, it must be evident (zahir) or clear and definite. The last condition is proper objective of the legal rule (Munasib) and benefits the public. (Moghul, 1999) In Malaysia, qiyas has been recognized and accepted as one of the sources of Islamic law in enacting or deducing some laws pertaining to Muslim affairs (Malaysia, 1970). The Qur an and the Hadith are silent on drug and thus, the jurist has applied qiyas in order to ascertain whether drug is prohibited or permissible in Islam (Moghul, 1999). The Jurist found that, the illah for the prohibition of alcohol (the asl) is existed in the case of drug consumption (the far ). The illah of intoxicating are such as weaken the mind and body, could influence person consumed liquor or drug to commit crime, it may kill the drug dependants and cause them become violent when they intoxicated from these substance. Therefore, prohibition of alcohol is prolonged to those drugs. (Rahman, 2013) Drinking liquor is prohibited in Islam. Ibn Umar has reported that the Prophet said, Every intoxicant is khamr and every intoxicant is haram (prohibited) (Idris, 1977). Meanwhile, the Muslim jurists agreed that the punishment for drinking liquor is under had punishment (El- Awa M. S., 1982). During the lifetime of the Prophet, the punishment for drinking liquor was 40 lashes (Anwarullah, 2002). Besides the first caliph, Abu Bakar has also imposed 40 lashes. Meanwhile at the time of Umar Ibn al-khattab, the punishment for drinking liquor has been increased to 80 lashes due to increase of drinkers. This punishment of 80 lashes was continued during the administration of Caliph Ali ibn Abi Talib. (El-Awa M. S., 1982)

5 With regard to the punishment for drug, a harsh punishment must be imposed against those who consumed drugs (Noor, 2012). Due to sharing the same illah, the punishment for drinking liquor that is whipping punishment shall also be extended to those who consumed drugs(consumption of Intoxicants and drugs: an Islamic Perspective, 2012). POINTS TO PONDER It is high time for the government to review and enhance the punishment for drug dependants. As of 2012, the statistics obtained from the AADK shows that the total number of drug dependants in Malaysia are 9,015.Out of this number 5,270 are new cases of identified drug dependants while 3,745 are relapsed drug dependants. Sadly to say, 4330 (82.16%) of them are Malays which represents the highest ethnic group involved in drug abuse compared with Indian 529 (10.04%) and Chinese 318 (6.03%). On average a total of 439 are new drug dependants and 312 relapsed drug dependants are traced every month. It has to be noted, however, that the actual population of drug dependants is higher than that in the official statistics because a large number of cases may go unreported and therefore, untraced by the AADK. Drug dependency has been reported in numerous cases either in relation to possession of drugs, drug trafficking or other crimes. In the case of Sathiyamurthi v Penguasa Pusat Pemulihan Karangan Kedah [2006] 4 CLJ 862, the accused relapsed four times after having undergone the treatment and rehabilitation. This indicates that a drug dependant may not be cured from drug dependency despite undergoing the required treatment. Evidence of drug dependants committing other crimes can be seen in PP v Mahadzir Yusof & Anor [2008] 1 LNS 304 where the accused who was a drug dependant committed murder. In Sakri Adam & Anor v PP CLJ 360, the accused who was drug dependant became a drug trafficker to support his drug consumption habits. It is common for drug dependants to be involved in drug trafficking as a means of obtaining financial resources to fulfill their drug cravings. Based on the statistics from the Prisons Department of Malaysia, a total of 2,146 drug dependants are also trafficking drugs and serving the punishment in prison. The battle against drug addiction has been expensive on the government (Jamal Ali, 2006). An estimated sum of RM million was spent by AADK in 2012 on treatment and rehabilititation of drug dependants in Malaysia. Not only the campaign against misuse of drugs which caused billion ringgit failed to achieve its goal, the government policy in supplying needles and condoms to drug dependants to control the spread of HIV seems ineffective (Kamaruddin, The Misuses of Drugs in Malaysia: Past and Present, 2007). Until now the main ways for tackling drug dependants is by enforcing rehabilitation in detention centres which does not appear to be succesful approach. It is essential that other means of encountering drug dependency problem be considered. Thus, there is an urgent need to enhance the punishment for drug dependants and adopting whipping as a punishment may possibly curb relapse of drug dependency and new cases of drug dependants. In fact the application of whipping for drug dependant is not something new in Malaysia. The punishment is provided in section 39 (c) of the Dangerous Drugs Act 1952 where the relapsed drug dependant could be punished up to three stokes. Not only that section 6 of of the Dangerous Drugs Act 1952 and section 39A of of the Dangerous Drugs Act 1952 states that, for those who are found guilty in posession certain amount of drugs may be punished for life imprisonment or not less than five years imprisonment or whipping not less than 10 strokes.this could be seen in the case of PP v Nik Mohd Nik Embong [2002] 1 LNS 10;Abdul rahim bin Kalandari Mustan v Pendakwaraya [2004] 1 MLJ 468.

6 In Islam, the punishment for the drug dependants are similar with those intoxicant. In the book entitled Haisyatuh al-syari ah written by Ibn Taimiyah, Hasyisyah (drugs) is prohibited and those who are taking drug should be punished like the one who drinking al- Khamr (Safian, 2013). Therefore, it is argued that by applying the punishment of 40 strokes even for the first time drug dependant in addition to rehabilitation is needed as one of deterrent measure in preventing others from associating themselves with drug. It should be noted that Islamic whipping is not cruel as civil whipping as there are certain techniques which reduces pain and sufferings. In its execution, the officer shall use the whipping rod with average force without lifting his hand over his head so that the offender s skin is not torn and after inflicting a stroke he shall lift the rod upwards and not pull it from the offender s body. According to section 125(3)(e) and (f) of the Syariah Criminal Procedure Act 1997, the whipping may be inflicted on all part of the body except the face, head, stomach, chest or private parts.if the offender has been sentenced to more than one stroke, the subsequent stroke must not be inflicted on the same place as the first stroke to prevent any wound. The strenght in the infliction of whipping shall differ according to the whipping officer and if the officer negligently causes a around to the offender, such officer shall be liable for disciplinary action. It is argued that the above procedures would not harm the drug dependants, infact it is interesting to note that Rusian scientist, Doctor of Biological Sciences, Sergei Speransky in his report entitled Methods of painful impact to treat addictive behavior that whipping therapy could cure drug and alcohol addictions as well as depression and suicidal thought. Siberian scientists believe that the addiction happened when an individual loses his or her interest in life. The absence of the will to live is caused with decreasing production of endorphins - the substance, which is known as the hormone of happiness. If the drug dependant receives whipping it will stir up endorphin receptors, activate the production of happiness and eventually remove addiction feelings towards drugs and alcohol and would increase the immunity in one body. He recommended 30 sessions of 60 whips on the buttocks in every procedure. (The Siberian Times, 2013) This is paralell with islamic punishment practiced by Prophet Muhammad (peace upon him) and his companions which which are 40 to 80 lashes for intoxicant. A true story given by Natasha, 22, from Novosibirsk that she undergone the whipping treatment therapy to overcome her chronic heroin addiction and she paid 3,000 roubles ($99) for a session of counselling and beating.she is given psychological counselling before each session of 60 lashes and also undergoes an electrocardiogram to ensure the shock therapy is not causing unexpected heart problems. Interestingly, Natasha is adamant that this treatment has transformed her life to a normal person (The Siberian Times, 2013). Therefore, it is possible that if whipping is used as a punishment for drug dependants in Malaysia it would not only reform the drug dependants but also would prevent and deter other people from commiting the same act. CONCLUSION It is highly recommended that this type of punishment should be given to drug dependants as an alternative therapy which is comparatively cheaper to methadone, rehabilition and detention centre as well as free neadles and condoms. Of course, it would save the government of Malaysia billions of ringgit to cure drug addictions among drug dependants. If the non-muslims in other country could accept this whipping as one of the method to cure their addictions not only towards drugs, but alcohol as well as sexual habits, this method

7 could be applied to drug dependants in Malaysia where most of them are Malays who professing Islamic religion. No doubt that Allah the almighty creator knows what is the best for His creatures and as such, the islamic punishment like whipping can be an alternative way to cure and help a person from his drug addictions. REFERENCES Al-Salami, M. A.-M. (n.d.). Al-Qiyas (Analogy) and Its Modern Application. Eminent Scholars Lecture Series, 11. Anwarullah. (2002). The Criminal Law of Islam. Kuala Lumpur: As Nordeen. A.Nadelmaan, E. (2014). Drug Prohibition in the United States: costs, consequences and Altenative. Journal of Law, Ethics and Public Policy, Athimulan, M. (2007). History and Development of Laws relating to Drugs. Jurnal Anti Dadah Malaysia, Bagaric, R. E. (2000). Australian Sentencing Principle and practice. Sydney: Cambridge University Press. Bradley, G. V. (2003). Retribution: the Central Aim of Punishment. Harvard Journal of Law Public Policy 27, El-Awa, M. S. (1982). Punishment In Islamic Law: A Comparative Study. Indiapolis: American Trust Publications. Hasan, A. (1983). Modes of Reasoning In Legal Cause (Ijtihas Fi'I-"illah). Islamic Studies, Hosein, I. (2008). The Qur'an, Crime and a Philosophy of Punishment. Retrieved 1 29, 2014, from Understanding Islam: Hudson, B. (1996). Understanding Justice: An Introduction To Ideas perspectives In Modern Theory. Buckingham, England: Open University Press. Idris, A. G. (1997). Himpunan hadith Sahih Mengenai hukuman Hudud. Kuala Lumpur: Al- Hidayah Publishers. Jamal Ali, S. H. (2009). Kos Ekonomi Penyalahgunaan Dadah. Jurnal Anti Ddah Malaysia, Kamali, M. H. (2001). Issues in Legal Theory and Prospect For Reform. Islamic Studies, Kamali, M. H. (n.d.). Al Qiyas (Analogy) and its Modern Applications. Eminent Scholars Lecture Series, 32.

8 Kamaruddin, A. R. (2007). The Misuse Of Drugs In Malaysia: Past and Present. Jurnal Anti Dadah Malaysia, Kamaruddin, A. R. (2007). The Misuse of Drugs in Malaysia:Past and Present. Jurnal Anti Dadah Malaysia, Kebangsaan, A. A. (2012). Buku Maklumat Ddah. Kuala Lumpur: Agency Anti Dadah Kebangsaan. Majid, M. K. (1999). Criminal Procedure in Malaysia. Kuala Lumpur: University of Malaya Press. Malaysia, J. K. (1970, 1 1). Pengertian Ahli Sunnah Wal Jamaah. Retrieved 1 1, 26, from e- fatwa: Moghul, U. F. (1999). Approximating Certainty in Ratiocination: How To Ascertain The Illah in the Islamic Legal Syatem and How to Determine the Ratio Decidendi in the Anglo-Amarican Common Law. Islamic Law Journal, Mohd Sukki Othman, M. H. (2008). Mengapa Perlu Kepada Undang-Undang Jenayah Islam? Kuala Lumpur: Pustaka Yamien Sdn Bhd. Rahman, A. (1999). Non- Muslims Under Shariah (Islamic Law). Kuala Lumpur: A.S Nordeen. Athimulan, M. (2007). History and Development of Laws relating to Drugs. Jurnal Anti Dadah Malaysia, A. B. (2013, 2 18). Dadah Mengancam Kesejahteraan Ummah dan Negara (Sempena Hari Antidadah Kebangsaan). Retrieved , 28, from Jabatan Kemajuan Islam Malaysia: Respondant. (2014, 2 13). Agensi Anti Dadah Kebangsaan. (I. R. Yuhanza, Interviewer) Safian, Y. H. (2013). An Analysis on Islamic Rules On Drugs. International Journal of Education and Research, Zulkifli, A. H. (2006). Punishment Under Islamic Law and Common Law: A comparative Study. Johor: Perniagaan Jahabersa. Zulkifli, A. H. (2006). Punishment Under Islamic Law and Common Law: A Comparative Study. Johor: Perniagaan Jahabersa.