Squire, Jason Scott
(2018)
Navigating Malaysian Civil Law And Maqasid Al-Shariah In The Best Interests Of Muslim Children Beyond Control:
A Case Study In Penang.
PhD thesis, 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.
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