Navigating Malaysian Civil Law And Maqasid Al-Shariah In The Best Interests Of Muslim Children Beyond Control: A Case Study In Penang
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Date
2018-09
Authors
Jason Scott Squire
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Journal ISSN
Volume Title
Publisher
Universiti Sains Malaysia
Abstract
Beyond control children are a unique phenomenon under Malaysian law, they have not committed a crime, rather they have trespassed on the normative expectations of propriety between parent and child in Malaysian culture. The state has declared its interest in this relational breakdown and its response remains rooted in Latin Christian judicial principles and practices that sailed out with British colonial law, early in the 19th century CE. Maqasid al-Shariah and Islamic justice philosophies share many similarities with Judeo-Christian traditions, however there are some fundamental differences when it comes to addressing conflicting families. Islamic legal and civil traditions promote reconciliation and mediation to restore harmony in families and communities, rather than elevating a social wrong against an individual which results in retributive punishment and expectations of atonement against the wrong doer. Malaysia’s treatment of beyond control children is incongruent with international standards or expectations, when a child can be held in custody or remain under state surveillance for up to three years for disobeying their parents. The research objectives were to explore what was being done to prevent children’s entry into the existing social welfare system or to extract them from it, considering Malaysia’s commitments to the United Nations’ expectations of preventing unnecessary institutionalisation. Furthermore, to establish whether there was potential in considering Islamic justice and reconciliation philosophies in the secularly framed responses to Muslim families in crises. Utilising a case study methodology, twenty-eight respondents, which included eight beyond control children reveal a process that is destined to punish and add distance in the fractured parent and child relationship, rather than repair it. The research highlights systemic failures in expectations of fairness, system compliance and judicial protection for children and their families. System duty bearers adopted a moral authority to deliver retributive pain and punishment to children and families who had failed to meet Malaysian social expectations. Maqasid al-Shariah and Islamic justice practices, such as the ancient sulh (amicable settlement) process are examples that meet the aspirations of modern international justice system responses to children in conflict with the law. Malaysia is perfectly situated to take the lessons learnt in the Malaysian Syariah Courts following their inclusion of the sulh practice early in the 21st century. Reimagining the state’s response is needed to one that promotes modern expectations of early intervention and diversion from formal justice systems into customary reconciliatory traditions, thereby preventing unnecessary surveillance and institutionalisation of children.
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Keywords
Problem children , Civil law