INTRODUCTION
There was a news reported in Berita Harian Online where three children, age between 12 to 14 years old, were charged in the Magistrate’s Court, for stealing items belonging to the people at a mosque. According to section 378 of Penal Code, “Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft.”
There are specific legal provisions in Malaysia that regulate illegal acts committed by those aged between 12 and 18 years. These laws are the Child Act 2001 and Penal Code. The Child Act defines the primary framework, mechanisms and procedures for the children committing criminal offences. Through these regulations, it can be seen that the age of criminal liability under the Malaysian criminal justice system is 10 years old, while a child is a person who is less than 18 years old.
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Theft from Islamic Perspective
In this era of globalization with vast development and technologies, it is undeniable that people nowadays have a sceptical thinking that amputation punishment for theft crime is considered as harsh and cruel. The punishment for this offence is called hudud which means forbidding or restraining, that is created by Allah S.W.T on purpose of our safety and prosperity.
The Islamic Law, or also known as the Shariah Law, defines Allah 's rules and instructions, in the best interests of man and for the direction of our life. Its aim is to show man the best way and provide him with the means to meet his needs in the most prosperous and beneficial way. There is nothing in it that tends to waste our powers, or overwhelm our natural needs and desires, or destroy our moral urges and emotions. The Shariah criminal law is basically divided into three main categories of crimes which are hudud, qisas, and ta’zir.
As the topic of this article is on theft, which the punishment of it fall under hudud, thus, the discussion will be specifically on hudud. Hudud means offences against Allah in the Islamic legal system. Other crimes like adultery (zina), robbery (hirabah), drinking of alcohol and apostasy (murtad) are also punishable under hudud in Islamic Law. These crimes are punished according to the stipulated sanctions as prescribed in the Quran and the Sunnah. The sentences are calculated specifically for each offense, based on the accused's motive, the nature of the proof and other criteria. These crimes are in fact, infringement against natural law as perceived within an Islamic State's cultures.
For instance, war declaration on an Islamic State is interpreted as to declare war on Allah and Prophet Muhammad SAW. This is clearly stated in the Quran in surah Al-Maaida (33): “The only reward of those who make war upon Allah and his messenger and strive after corruption in the land will be that they will be killed or crucified, or have their hands and feet on alternate sides cut off, or will be expelled out of the land”.
Hudud are not meant to be punitive. The aim is to preserve law and order, through direct deterrence in a Muslim society. Contrary to generally accepted thought, Islam asks its followers to demonstrate compassion and clemency over the application of hudud. Islam also urges its followers to confess when they commit crimes and then return to the correct path. Prophet Muhammad SAW never like punishing his followers, but preferred teaching them and promoting repentance. Nonetheless, many jurists claim that Quranic punishments like hudud cannot be extended to anyone who repents after the offense and before the penalty is executed.
Importantly, Islam orders Muslims to be humane even while applying the hudud as Prophet Muhammad SAW said, “Strive to be humane to one another in applying Quranic punishments.” As a religion which loves peace, the essence of Shariah is also characterized by compassion and mercy. The Shariah and hudud 's ultimate goal is to protect human well-being and to create a just society. The Shariah is an important social and legal framework intended to bring profit and justice to all humanity.
Maximizing mercy is the central concept when applying the hudud punishments. This was clearly articulated in a hadith attributed to the Prophet Muhammad SAW, including his wife Saidatina Aishah and Caliphs Umar Al-Khattab and Ali Bin Abi Talib, “Ward off the hudud from the Muslims as much as you all can, and if you find a way out for the person, then let them go. For it is better for the authority to err in mercy than to err in punishment.” Within a century of Prophet Muhammad SAW’s passing, Islamic scholars had interpreted this hadith into the essential legal concept of ‘Ward off the hudud by ambiguities or shubhah.’
As this article is specifically on theft, thus, the discussion will be on it in detail. The punishment for theft crime is stated in the Quranic verse in Surah Al-Maaida (38), “As to the thief, male or female, cut off his or her hand as a reward of their own deeds, and as an exemplary punishment from God. For God is Mighty and Wise.” Thus, after someone has been convicted under theft crime, the judge will cut off their right hand. Then, if a thief steals again and the theft is proved, his left foot will be cut off.
What indicates that this ruling is definitive, is the fact that a Makhzoomi noblewoman, who was from the tribe of Makhzoom, stole at the time of the Prophet SAW and Usaamah Ibn Zayd, may Allah be pleased with him, wanted to intercede for her. The Prophet Muhammad SAW became angry and said:
“Do you intercede concerning one of the Hadd set by Allah? Those who came before you were destroyed because if a rich man among them stole, they would let him off, but if a lowly person stole, they would carry out the punishment on him. By Allah, if Fatimah Bint (daughter of) Muhammad were to steal, I would cut off her hand.” [Al-Bukhari]
Islam places theft among the crimes that can be punished by hudud. Thus, the conditions for convicting someone who is committing this theft crime are strict. The conditions to convict a person of committing the crime of theft are; first, the person who commits the crime of theft must have reached puberty. Narrated by Ahmad, Ashabi, Sunnah and Hakam hadith of the Prophet Muhammad SAW which means, “Allah will not punish three groups of people, namely people who sleep until he wakes up from his sleep, children until he is puberty and a madman until he is sensible.”
Thus, according to the four Sunni school of law, the theft of a free child will not incur amputation because he does not fulfil the requirement which is, he must be an adult for hudud punishment to be implemented on him. Abdullah Ibn Sinan relates the following tradition from Imam Ja’far as-Sadiq (a.s.): “When a minor child steals for the first and the second time he is forgiven. If he does it for the third time, he is issued a strict warning and beating. If he persists in his crime, the tips of his fingers are slightly cut and if he repeats the act, some more of his fingers are cut away.”
In Islamic law, one reaches adulthood with all its rights and responsibilities at the time of puberty; either through physiological signs or upon attaining a certain age. Scholars from mazhab Syafie and Ahmad stated that the puberty age for both boys and girls is when they hit 15 years old (qamariyyah years) according to Ibn Umar;s narrative :
“I submit myself to the Prophet PBUH for Uhud when I was 14 years old and the Prophet PBUH did not allow me, for he does not consider me as someone who has reached the age of puberty. I submit myself to the Prophet PBUH when I was 15 years old for Khandak and he allowed me for he considers me as someone who has reached puberty.” (Sunan Ibn Hibban (4728) and the original narration can be found in al-Sahihayn)
While Imam Maliki and Imam Hanafi states that the age of puberty is at 18 years old (qamariyyah years). In conclusion, generally, mazhab al-Syafie and Ahmad set the age of puberty for a child at 15 years old, while mazhab al-Maliki and al-Hanafi set the age of puberty for a child at 18 years old.
In the opinion of Imam Shafie, if a minor can differentiate between right and wrong even before reaching adulthood, he is responsible to return the property which he stolen and is punishable under ta'zir.
Second, the stolen property must reach the prescribed rate of one quarter dinar which is equivalent to 1.06 grams. The value of the object stolen has to be considered before the execution of amputation, as mentioned in a Hadith where Saidatina Aishah cited the Prophet Muhammad SAW saying: “A thief’s hand should be not cut off except for a quarter of dinar and upwards”. The required or minimum value under Islamic criminal law for the stolen item is, should be at least one quarter or the equivalent of a dinar, in order to prove someone commits theft crime.
Muhammad Ibn Muslim asked Imam Ja’far as-Sadiq (a.s.) about the minimum value of stealing that able to make one liable for amputation of his hands. Imam Ja’far answered that it is a quarter of a dinar. Ibn Muslim went on to say that what if someone stole two dirhams and Imam Ja'far replied that a dirham is more than a quarter of a dinar. Thus, the hands are amputated in all those cases. Ibn Muslim even questioned the implications of stealing less than a quarter of a dinar, and will the person be called as a thief.
Imam Ja’far told him that in Allah’s eyes, every such person who steals the property of the Muslims and keeps it for himself, is a thief. That means, even though his hands are not cut off in this world, Allah will punish him with the punishment reserved for all those who steal. Besides, we would find most of the people with their hands severed if the hands of those who steal less than a quarter dinar were also to be cut.
Third, the property stolen from a suitable storage place. The property has had to be kept in a safe location that the thief broke through violently. The property should have been maintained in a secure keeping (hirz). The idea behind ‘hirz’ implies safeguarding and physical security over an object at a place like a residential apartment.
Fourth, the thing must have been taken by stealth or in secrecy; if it was not taken by stealth, then the hand would not be cut off. For example, when property was forcefully confiscated in front of other citizens. In this case, the owner of the property may have called for help to stop the theft.
Fifth, the stolen goods should be worth something, for that which is useless, has no sanctity such as musical instruments, wine, and pigs. If the used of the stolen items are Haram, which means non-permissible in Islam, thus, there is no criminal action is taken against the thief.
Sixth, the person from whom the property was stolen, have to ask back for it. If he does not, the thief's hand must not be cut off. The thief is not prosecuted if the owner takes back his goods or allows the thief to keep them before the matter is reported to the judge (Qadhi), or the owner does not ask for the thief to be punished. Nevertheless, even the owner cannot save the thief from prosecution if the crime is proven before the judge.
Seventh, there should be no element of shubhah which means doubt, such as stealing something, for example vegetables, meat, and bread, which rots quickly. Imam Abu Hanifah is of the opinion that in this situation, the hudud penalty for stealing is excused. Nevertheless, Abu Yusuf disagrees with Abu Hanifah and holds the same opinion as Imam Malik, Imam Shafie and Imam Ahmad ibn Hanbal, who do not think that anything that rapidly rots, is a cause of any shubhah.
Next, to prove a theft, two just (‘adl) male witnesses must have seen the thief steal. The two male witnesses are to testify to all of the case's details. Their testimony must not conflict with one another. The hudud may not be applied if they change their testimony prior to execution. This may also be that, there is only one witness, but the owner also testifies that there has been theft. The thief may also confess his crime twice and deserve to be punished for theft under hudud. However, if he only confesses once, the stolen goods are taken away from him and be returned to the owner. Thus, he is not punished for theft.
Therefore, to be convicted of theft crime under the Shariah Law, a number of requirements must be fulfilled including the thief must be an adult. If this requirement fails to be fulfilled, hudud punishment for theft cannot be implemented to the offenders.
Factors That Contribute to Theft Crime
Stealing can be seen as a common activity among children and there are actually lots of factors that lead them in doing so. In this research, we are looking into the factors that contribute to theft crime committed by children, specifically in Kuala Lumpur.
First, most of them find it difficult to grasp the definition of private property that is, they do not have the property rights that belong to someone else. Small children are naive, and cannot distinguish between things that belong to them and things that belong to other people. They maybe take somebody else's stuff, thinking it is their own. In such a situation, children are unaware of the fact that they are doing anything wrong. Often, they believe that what is someone else's is also theirs, but we can expect more from the children who are going to school because they are starting to grasp the idea of ownership. When a child displays a lack of understanding of rules and control, then it is time for us to sit down with them and let them understand it.
Most of the children specifically in Kuala Lumpur, usually stole motorcycles and the reason is, due to friends’ influence and pressure such as the child being challenged by their friends to commit the crime. In addition, sometimes, the children commit theft to make themselves look cool in front of their peers. The older kids might steal because they like the risk of doing so. Peer pressure and the need to fit in are also a major cause of stealing.
Some kids get depressed when a group boycotts them, simply because they come from a relatively poor family. They stole due to the need to fit into a group with members of the high-class society. Peer pressure can be more disheartening than it may seem. Children often engage in the act of stealing to please their peers. Parents can find it difficult to comprehend the true strength for children who are under such strain. A parent should make sure their child survives in an environment like this or change his or her environment.
Besides, a large number of them commit theft because they do not have money to buy what they want. For example, the children have a desire to own a motorcycle which was on trending such as Y15, Honda X5 and LC135. The sense of envy grows right from childhood and the urge to have nice or expensive items will cause the children to steal. Many kids are jealous of their classmates too, who have beautiful things, such as wonderful pens or latest lunch boxes and thus, they turn to stealing, to get the same thing. This kind of reason for stealing should be dealt with, as priorities. Thus, parent should teach them to value their own things and try to find happiness and satisfaction with their own stuff.
Furthermore, the children commit theft due to family matters such as they were having financial problems, or their parents were too busy with their works and neglect their children. The finding of a study stated that relationship between family affect behavioral problems among young offenders. If the bond in a family is good, the percentage of adolescents commit crime is lower. Most of the young offenders are from broken, poor families and have many siblings, not receiving parental love and having strained family relationships.
For instance, they are exposed by violation at home or have been neglected by their parents and faced the conflict of religion conversion. These children faced these entire problems by themselves and they do not know how to deal with those problems. Therefore, they decided to run away from their home and some of them have lost their control and commit the crime including theft.
Sometimes, lack of parents’ attention drives kids to steal. They know that they will get their parents attention by stealing. In such a case, parents need to be more attentive to their children so that they will not have to invent these negative ways to make the parents notice them. Often it may be that the child is very sad and in need of the affection of the parents, and that he or she risks something and steals so that he or she is scolded. Any attention the parents give is good enough for them.
Practices of parental control play a key role in delinquency. Boys convicted of stealing crimes and crimes against persons are likely to have less parental supervision. Children who have not been supervised during middle childhood can be found fighting, lying, and stealing outside the home. Frequent monitoring by the parents especially, discourages criminal behavior of the children and distinguish one-time offenders from repeat offenders.
Many of those who are chronic offenders are often low-class society, have a large family sizes, criminal parents, poor parental discipline, and have conflict with parents. Marital dispute, divorce and single-parent homes are relatively good predictors of potential delinquency. In addition, when a divorced parent remarries, boys aged 12 to 15 are more likely to engage in delinquent behaviors, especially involving violence and theft.
Kids consider the perfect way to show their frustration and revenge by stealing. If they are angry with someone who is stronger than them, stealing turns out to be the only way to make someone else suffer. When a kid knows for a fact that someone is going to get angry with him or her for stealing, particularly the parent, and they have seriously upset him or her, then the kid will return to stealing just to wind it up. But this is nothing, but emotional acting and the parents have to deal with it in a very simple manner. Parents should talk to the child and let him or her vent out his or her emotions in front of them.
Lastly, due to the children having the opportunity to commit theft such as the motorcycle’s owner negligently placed the key on the motorcycle. For some kids, stealing is an audacious act and the children steal things just for the rush of adrenaline and enjoy the fun of not getting caught. The act brings them excitement and channel their energy into something more exciting and inspire them to do more things. Thus, this will require a little bit of knowing the child's true nature and parents must make sure the child has other options in his or her life to get excitement and adventure.
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