The Application of Shari'ah Principles of Ta'zir in Malaysian Common Law: A Maqasid-Based Proposal

In the Malaysian context, debates pertaining to the role of judges in making new laws according to their own discretion are still on-going. In principle, Malaysia’s judiciary system provides judges with a considerable amount of discretionary power when deciding on cases where no specific legislation has been enacted. Nonetheless, judicial discretion in Malaysia is restricted by mandatory sentences for a number of offences. In this context, many calls have been made by judges and scholars to scrutinize the judiciary system. They have raised the question of whether Malaysia needs to resort to English common law, despite having been independent for more than 50 years. Some have even proposed the development of a ‘Malaysian Common Law’ through the judges’ discretionary authority. In this context, this article examines the Islamic legal principle known as ta’zir. One of Islam’s pivotal criminal principles, ta’zir aims at several specific objectives (al-maqasid al-khass), such as the prevention of perpetrators from repeating offences. This research highlights several underpinning principles (dawabit) of ta’zir that, in light of the higher intents of the Shariah, could be used as guidelines for judges in the course of adjudicating cases. Drug trafficking offences are then selected as a specific example of how this could be done, thereby displaying the viability of this proposal in the realm of a hypothetical Malaysian common law system.