COMPARATIVE CRIMINAL LAW

Article :

VIOLENCE AGAINST CHILDREN: A COMPARISON OF INDONESIAN AND

MALAYSIAN CRIMINAL LAW AND ISLAMIC LAW PERSPECTIVES

Prepared by :
GUNAWAN BUDI INDRA (G1924035)
Master of Comparative Law

Lecturer :
MOHAMAD ISMAIL BIN HJ MOHD YUNUS
Table of Contents ………………………………………. ii

Abstract ………………………………………. iii

Research Methodology ……………………………………… iv

I. Introduction …........................................................ 1

II. Definiton ….…………………………………… 2

III. Age limit of children ……………………………………… 3

IV. Child Protection ……………………………………... 4

V. Punishment …………………………………….. 7

VI. Violence against children from the perspective of Islamic law 9

VII. CONCLUSION …………………………………………. 17

VIII. BIBLIOGRAPHY ................................................................ 19

ii
Abstract
Children are vulnerable and are the hope of the nation's future so that children must grow and
develop properly physically and mentally. as Islamic majority countries, both Malaysia and
Indonesia certainly believe that children are entrusted by God to a family that must be
maintained and protected. Various violations of children's rights still occur frequently such as
physical, psychological and sexual violence. The rules contained in the law in both countries
have provided protection for children who face legal problems in both Indonesia and Malaysia.
This paper describes the criminal laws that regulate violence against children. This research
uses a normative juridical method with a comparative approach, namely comparing Indonesian
criminal law with Malaysian criminal law and in terms of the views of Islamic law. This refers
to the criminal law regulations for acts of violence against children where Malaysia is regulated
in the Child Act of 2001, while in Indonesia it is regulated in Law Number 35 of 2014. By
examining the main problems of criminal law, namely criminal acts and sanctions related to
the regulation of violence against children. The purpose of this comparison is to find out the
differences and similarities, weaknesses and advantages as well as problems that occur between
Malaysia and Indonesia.

iii
Research Methodology
A.1. Research Focus and Data Sources
This research focuses on describing the comparison between child abuse laws in Malaysia and
Indonesia, as well as from the perspective of Islamic law. This study focuses on describing the
comparison between the laws of child abuse in Malaysia and Indonesia, and from the
perspective of Islamic law, whether as Muslim-majority countries they have the same laws in
terms of regulations and severity of punishment for perpetrators.
The data sources used in this research are secondary data sources. This secondary data is
obtained from supporting literature such as textbooks, Al-Qur'an, hadith, journals,
documentation, data from research institutions, and reliable online media as well as all laws
relating to the protection of violence against children in Malaysia and Indonesia.
A.2 Comparative Research Method
Comparative research is comparative research, which is conducted to compare similarities and
differences between two or more properties and facts of the object under study based on a
certain framework of thought. Comparative research is usually used to compare between two
or more groups in a particular variable. In this case, it is comparing the applicable laws in
Malaysia with Indonesia relating to the applicable regulations on violence against children and
comparing with the regulations in Islamic law.
A.3 Data Analysis
The data analysis process is carried out after all data has been collected. Data analysis will be
carried out by reading, studying, analyzing and comparing various sources of literature and
laws that apply in Malaysia and Indonesia and regulations that apply in Islamic law. The final
stage is to draw conclusions from any information obtained so as to provide research results
that can be understood by the world community in general and especially Muslim-majority
countries that use the Islamic legal system and a mixture of Islamic law and Western law.
A.4 Researc objectives
The purpose of this research is to find out whether Malaysia and Indonesia as countries with a
Muslim majority population apply the same law as Islamic law, and what are the similarities
and differences in the laws that apply in the two countries and how Islamic law regulates
violence against children. With this research, it is hoped that readers can understand the rule of
law in terms of violence against children in both countries and reviewed from Islamic law. so
that the author hopes that readers can know the rules of law regarding the rights and obligations
as parents, as educators and as caregivers for children so that they know the limits in protecting,
caring for, educating and punishing children.

iv
 1

I. Introduction
Violence against children is an issue of concern in both Malaysia and Indonesia. This
violence often occurs within the family, which should be the safest shelter for children.
Ironically, most of the perpetrators of violence are people who are close to the children,
often their own parents. However, children who are victims of violence have yet to receive
adequate protection, both from the state and government as well as the community due to
a lack of awareness that children are the successors of this nation and children are a gift
from God who should be cared for, given compassion, education and protection.
Based on the Out of the Shadows Index 2022, which is used to measure how 60 countries
are preventing and responding to child sexual exploitation and abuse, Malaysia ranked 23rd
out of 60 countries with a total score of 56.9, falling behind Indonesia (68.1), Thailand
(58.7), Philippines (58.4) and Vietnam (58.4).1
2
Substantially, child abuse can be classified into four categories, namely:
1. Physical violence. Physical abuse is any act that results in or is likely to result in
physical harm or pain such as slapping, hitting, twisting arms, stabbing, choking,
burning, kicking, threats with objects or weapons, and murder.
2. Psychological violence. Psychological violence includes behaviors aimed to
intimidate and persecute, threaten or abuse authority, restricting the authority,
restricting outings, surveillance, taking custody of children, damaging children's
belongings, isolation, verbal aggression and constant humiliation. constant humiliation.
3. Sexual abuse. Sexual abuse such as sexual activity forced sexual activity through
threats, intimidation or physical force, forcing unwanted sexual unwanted sexual
intercourse or forcing sex with another person.
4. Economic violence. Economic violence includes actions such as denial of funds,
refusal to contribute financially, denial of food and basic necessities, as well as
controlling access to health care and basic necessities, and controlling access to health
care and employment.
The above forms of violence reflect the patterns of violence experienced by children as
victims of violence. In practice, young children are most at risk of physical violence, while

1
Natasya,Farah. Alarming developments in child abuse.The sun daily,sun,jul 2 2023).
https://www.thesundaily.my/home/alarming-developments-in-child-abuse-BC10470573
2
Sushma Kapoor, Domestic Violence Against Women and Girls, (USA: Innocenti Research Center-UNICEF,
2000), p. 2
 sexual violence is dominant physical violence, while sexual violence predominantly
predominantly affects those who have reached puberty or adolescence. Boys are more boys
are more at risk of physical violence than girls, while girls are more at risk of sexual
violence,neglect, and forced prostitution (human trafficking). 3 The factors that influence
the occurrence of violence against children are ignorance by parents and educators on how
to educate children and the childhood experiences of perpetrators who think it's normal
because it has happened to them. Apart from that, economic and environmental factors are
also quite influential in causing violence against children. so many people think it's normal.
Malaysia and Indonesia are neighboring countries that both have a majority Muslim
population. therefore between Indonesia and Malaysia have almost the same background
with regard to child abuse. In Malaysia it is regulated in the Child Act of 2001 while in
Indonesia it is regulated by Law Number 35 of 2014 concerning Child Protection. Malaysia
has regulated the protection of children since 1947 while Indonesia only regulated in 1979.
Regarding the special agency for child protection, the difference is that Malaysia does not
have a special national agency or institution to deal with child issues, but JabatanKebajikan
Masyarakat (JKM) or the Department of Social Welfare, Suruhanjaya Hak Asasi Manusia
or the Human Rights Commission (SUHAKAM), the Malaysian Department of Education,
the Malaysian Prison Department, local governments and state courts are institutions
involved in the protection of children (Jauhari, 2013). Meanwhile in Indonesia there has
been a special body, namely the Indonesian Child Protection Commission (KPAI) which
was formed in 2002, and before that there was the National Commission for Child
Protection which was formed in 1998. 4

II. Definition
According to the Malaysia Health Ministry (MOH), child abuse is the physical and
emotional mistreatment, sexual abuse, neglect and negligent treatment of children, and
their commercial or other exploitation. Child abuse is, generally, divided into four
different categories: physical abuse, sexual abuse, emotional abuse and neglect. 5

3
Fadhli,Asbabul. Aspek Pencegahan Kekerasan terhadap Anak Dalam Persfektif Islam (AR-RISALAH vol 2 No
1,June 2012).p.11
4
Hamida Aulia, Setiyono Joko. Analisis Kritis Perlindungan Terhadap AnakKorban Kekerasan Dalam Rumah
Tangga:Kajian Perbandingan Hukum. (Jurnal Pembangunan Hukum IndonesiaProgram Magister Hukum,
Fakultas HukumVolume 4, Nomor 1, Tahun 2022)p.81-82
5
Natasya,Farah. Alarming developments in child abuse.The sun daily,sun,jul 2 2023).
https://www.thesundaily.my/home/alarming-developments-in-child-abuse-BC10470573

2
 Violence against children is a new terminology in Indonesian criminal law that is not
found in the Criminal Code, this has only appeared in Law No. 23 of 2002 concerning
Child Protection but no definition of violence against children has been found. The
definition of violence against children was only found after the amendment of Law No.
23 of 2002 into Law No. 35 of 2014 concerning amendments to Law No. 23 of 2002
concerning Child Protection6.Article 1 point 15 (a) of Law No. 35 of 2014 explains that
"Violence is any act against a child that results in physical, psychological, sexual,
and/or neglectful harm or suffering, including threats to commit acts, coercion, or
unlawful deprivation of freedom.
Violence is defined as any act that targets a child and causes physical, psychological,
sexual, or neglectful harm or suffering. that causes pain or suffering, whether physical,
psychological, sexual, or neglect. It also includes threats, coercion, or deprivation of
liberty. Any form of violence or misconduct that falls within the details of this
definition is considered child abuse.
III. Age limit of the child
Age is an important factor in determining whether a person is a child or not. It is
important to determine whether a person is considered as a child because if he is a child,
specific provisions of law which provides for the protection of a child will be
applicable. Therefore, the child will be protected from being exploited.
The Child Act was which passed in 2001 (Act 611) to consolidate three major statutes
governing children and young persons, i.e., the Juvenile Court Act 1947, Child
Protection Act and Women and Girls Protection Act 1973, defines a child as all persons
aged below 18 years. The definition is also in line with Article 1 of the Convention on
the Rights of the Child 1991, i.e., a child is defined as someone who is under the age of
187. Meanwhile according to the provisions of Article 1 paragraph (1) of the Indonesian
Law on Child Protection,"child" is defined as "a person who is not yet 18 (eighteen)
years old, including children still in the womb. (eighteen) years old, including children
still in the womb." So that on that as a human being, a child has a human value that
cannot be eliminated for any reason.

6
Hidayat,Taufik. islamic criminal law views on physical violence against children. (Jurnal Ilmiah Syariah volume
15,No. 2,2016)P.119
7
Yusop,Yusnani. Child Abuse In Malaysia: Legal Measures For The Prevention Of Crime And Protection Of The
Victim. (Investigation Officer, Crime Investigation Department, Royal Malaysia Police, Malaysia).p.52

3
 cannot be eliminated for any reason. The state guarantees the rights and protection of
children in Law Number 35 of 2014 on the Amendment to Law No. 23 of 2002 on the
Protection of Children.
IV. Child Protection
Nowadays, there are many discussions about children's issues that have begun to
concern various elements of society, in connection with their position and rights in the
family and parents' treatment of children, including aspects of child protection through
government policy regulations to protect children both in the family environment,
schools and even in public places and social media.
The Child Protection Law emphasizes the importance of safeguarding children's rights
and protecting them from violence in any form. The following are some articles that
contain provisions on violence against children in the laws of Malaysia and Indonesia:
Section 17(1) of Child Act 2001 provides protection :8
(1) A child is in need of care and protection if -
(a) the child has been or there is substantial risk that the child will be physically injured
or emotionally injured or sexually abused by his parent or guardian or a member of his
extended family; (b) the child has been or there is substantial risk that the child will be
physically injured or emotionally injured or sexually abused and his parent or guardian,
knowing of such injury or abuse or risk, has not protected or is unlikely to protect the
child from such injury or abuse; (c) the parent or guardian of the child is unfit, or has
neglected, or is unable, to exercise proper supervision and control over the child and
the child is falling into bad association; (d) the parent or guardian of the child has
neglected or is unwilling to provide for him adequate care, food, clothing and shelter;
e) the child - (i) has no parent or guardian; or (ii) has been abandoned by his parent or
guardian and after reasonable inquiries the parent or guardian cannot be found, and no
other suitable person is willing and able to care for the child; (f) the child needs to be
examined, investigated or treated - (i) for the purpose of restoring or preserving his
health; and (ii) his parent or guardian neglects or refuses to have him so examined,
investigated or treated;(g) the child behaves in a manner that is, or is likely to be,
harmful to himself or to any other person and his parent or guardian is unable or
unwilling to take necessary measures to remedy the situation or the remedial measures
taken by the parent or guardian fail; (h) there is such a conflict between the child and

8
The Children Act 2001 (Act 611) is state legislation for the protection, care and restoration of children.

4
 his parent or guardian, or between his parents or guardians, that family relationships
are seriously disrupted, thereby causing him emotional injury; (i) the child is a person
in respect of whom any of the offences specified in the First Schedule or any offence
of the nature described in sections 31, 32 and 33 has been or is suspected to have been
committed and his parent or guardian - (i) is the person who committed such offence
or is suspected to have committed such offence; or (ii) has not protected or is unlikely
to protect him from such offence; (j) the child is - (i) a member of the same household
as the child referred to in paragraph (i); or (ii) a member of the same household as the
person who has been convicted of the offence referred to in paragraph (i), and appears
to be in danger of the commission upon or in respect of him of a similar offence and
his parent or guardian - (aa) is the person who committed or is suspected to have
committed the offence; (bb) is the person who is convicted of such offence; or (cc) is
unable or unwilling to protect him from such offence; (k) the child is allowed to be on
any street, premises or place for the purposes of - (i) begging or receiving alms, whether
or not there is any pretence of singing, playing, performing or offering anything for
sale; or (ii) carrying out illegal hawking, illegal lotteries, gambling or other illegal
activities detrimental to the health and welfare of the child.
Meanwhile, in Indonesia, it is regulated in :9
a. Article 1 paragraph (2) of the 2014 child protection law in Indonesia which reads:
"Child protection is all activities to guarantee and protect children and their rights so
that they can live, grow, develop, and participate optimally in accordance with human
dignity and values, and receive protection from violence and discrimination."
b. Article 9 paragraph (1) letter a reads:
"Every child has the right to protection in education units from sexual crimes and
violence committed by educators, education personnel, fellow students, and/or other
parties."
c. Article 54 paragraph (1) states that:
"Children in and around education units must receive protection from physical,
psychological violence, sexual crimes, and other crimes committed by educators,
education personnel, fellow students, and/or other parties."
d. Article 76Every person is prohibited from:

9
Indonesian Child protection law No. 35 of 2014 concerning amendments to law No. 23 of 2002

5
 a. to treat a child in a discriminatory manner that causes the child to suffer
material or moral harm that inhibits his/her social function; or
b. to treat Children with Disabilities in a discriminatory manner.
e. Article 76C contains the formulation of offenses against children:
"Every person is prohibited from placing, allowing, committing, ordering to commit,
or participating in violence against children."
f. Article 76D states that:
"Every person is prohibited from committing violence or threat of violence to force a
child to a child to have sexual intercourse with him/her or with another person."
The above article specifically contains rules prohibiting violence and threats of violence
in the corridor of sexual crimes against children.
g. Article 76E states that:
"Every person is prohibited from committing violence or threat of violence, forcing,
deceiving, committing a series of lies, or inducing a child to commit or allow obscene
acts to be committed."
This article emphasizes the prohibition of violence or threat of violence, coercion,
including deception and lies in deceiving children to commit obscene acts, as well as
the prohibition of omission of obscene acts on children.
All of the above articles show concrete actions from the Indonesian government in the
field of legislation with the aim of protecting the rights and freedoms of children. All
of them are a collection of rules that must be obeyed, are binding, universally
applicable, and have strict sanctions as applicable laws in the Unitary State of the
Republic of Indonesia.
The articles above, both the 2001 Children's Act and Law No. 35 of 2014, contain
provisions regarding the scope of child protection, namely all activities carried out to
guarantee and protect children and their rights. These protected rights include the right
to life, the right to grow, the right to develop, the right to participate optimally in
accordance with human dignity and dignity, and to obtain protection from violence and
discrimination. arise in the lives of children. The protection from violence in question
is of course protection from physical and psychological violence that might occur.
Thus, the governments of Malaysia and Indonesia have guaranteed the protection of
children from all forms of violence in their lives as children.
However, there is little difference in Indonesia where there is an article which reaffirms
the protection of children from violence or unpleasant actions within the education unit

6
 which emphasizes the obligation of the education unit to protect children from violence
or unpleasant actions within the education unit. The obligation of education units to
protect their students is not contained in the article in the Malaysian Children's Deed.
Meanwhile, in the Malaysian Children's Act, it is explained in more detail what
categories fall into child neglect compared to Law No. 35 of 2014 in Indonesia.
V. Punishment
The criminal formulation of violence against children in Malaysia is regulated in Childs
Act 2001 Malaysia section 29. (1) and (2), section 31. (1), (2), (3), (4), (5)
Sec 31. Ill-treatment, neglect, abandonment or exposure of children
(1) Any person who, being a person having the care of a child -
(a) abuses, neglects, abandons or exposes the child in a manner likely to cause him
physical or emotional injury or causes or permits him to be so abused, neglected,
abandoned or exposed; or
(b) sexually abuses the child or causes or permits him to be so abused; commits an
offence and shall on conviction be liable to a fine not exceeding twenty thousand ringgit
or to imprisonment for a term not exceeding ten years or to bothwhile in Indonesia in
Law Number 35 Year 2014 on Child Protection Article 77, Article 77A,Article 77B,
Article 80, Article 81, Article 82, and Article 88.
Sec 31. Ill-treatment, neglect, abandonment or exposure of children
(1) Any person who, being a person having the care of a child -
(a) abuses, neglects, abandons or exposes the child in a manner likely to cause him
physical or emotional injury or causes or permits him to be so abused, neglected,
abandoned or exposed; or
(b) sexually abuses the child or causes or permits him to be so abused; commits an
offence and shall on conviction be liable to a fine not exceeding twenty thousand ringgit
or to imprisonment for a term not exceeding ten years or to both.
Sec 32. Children not to be used for begging, etc
Any person who causes or procures any child or, being a person having the care of a
child, allows that child to be on any street, premises or place for the purposes of -
(a) begging, receiving alms, whether or not there is any pretence of singing, playing,
performing or offering anything for sale; or
(b) carrying out illegal hawking, illegal lotteries, gambling or other illegal activities
detrimental to the health and welfare of the child, commits an offence and shall on

7
conviction be liable to a fine not exceeding five thousand ringgit or to imprisonment
for a term not exceeding two years or to both.
Sec 33. Offence to leave child without reasonable supervision
Any person who, being a parent or a guardian or a person for the time being having the
care of a child, leaves that child - (a) without making reasonable provision for the
supervision and care of the child; (b) for a period which is unreasonable having regard
to all the circumstances; or (c) under conditions which are unreasonable having regard
to all thecircumstances,commits an offence and shall on conviction be liable to a fine
not exceeding five thousand ringgit or to imprisonment for a term not exceeding two
years or to both.
Section 43
Any person who sells, rents, buys, employs a child for prostitution in the case of an
offense under section 43 (a) to (h) or subsection (k), shall be liable on conviction to a
fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding
fifteen years or to both; and (bb) in the case of an offense under subsection (i) or (j),
shall be liable on conviction to a fine not exceeding fifty thousand ringgit and to
imprisonment for a term not less than three years but not exceeding fifteen years.
While punishment in Indonesia is regulated in :
Article 77 of Law No. 35 Year 2014 which reads : Any person who violates the
provisions as referred to in Article 76A shall be punished with a maximum
imprisonment of 5 (five) years and/or a maximum fine of Rp100,000,000.00 (one
hundred million rupiah).
Article 77A (1) which reads : Any person who intentionally aborts a child still in the
womb for reasons and procedures that are not justified by the provisions of laws and
regulations as referred to in Article 45A, shall be punished with imprisonment for a
maximum of 10 (ten) years and a maximum fine of Rp1,000,000,000.00 (one billion
rupiah).
Article 77 .
Any person who violates the provisions as referred to in Article 76B, shall be punished
with imprisonment for a maximum of 5 (five) years and/or a maximum fine of
Rp100,000,000.00 (one hundred million rupiah).
Article 80 paragraphs 1, 2, 3 and 4 which reads:

8
 (1) Every person who violates the provisions as referred to in Article 76C, shall be
punished with a maximum imprisonment of 3 (three) years 6 (six) months and/or a
maximum fine of Rp72,000,000.00 (seventy two million rupiah).
(2) In the event that the Child as referred to in paragraph (1) is seriously injured, the
perpetrator shall be punished with a maximum imprisonment of 5 (five) years and/or a
maximum fine of Rp100,000,000.00 (one hundred million rupiah).
(3) In the event that the Child as referred to in paragraph (2) dies, the perpetrator shall
be punished with a maximum imprisonment of 15 (fifteen) years and/or a maximum
fine of Rp3,000,000,000.00 (three billion rupiah).
(4) The punishment shall be increased by one third of the provisions as referred to in
paragraph (1), paragraph (2) and paragraph (3) if the perpetrator of the maltreatment is
a parent.
Article 81:
(1) Any person who violates the provisions as referred to in Article 76D shall be
punished with imprisonment for a minimum of 5 (five) years and a maximum of 15
(fifteen) years and a maximum fine of Rp5,000,000,000.00 (five billion rupiah).
(2) The criminal provisions as referred to in paragraph (1) shall also apply to any person
who intentionally commits deceit, a series of lies, or induces the Child to have sexual
intercourse with him/her or with another person.
(3) In the event that the criminal offense as referred to in paragraph (1) is committed
by a parent, guardian, caregiver of the child, educator, or education personnel, the
punishment shall be increased by 1/3 (one-third) of the punishment as referred to in
paragraph (1).
Article 88 which reads: Any person who violates the provisions as referred to in Article
76 I, shall be punished with a maximum imprisonment of 10 (ten) years and/or a
maximum fine of Rp200,000,000.00 (two hundred million rupiah).

VI. Violence against children from the perspective of Islamic law

Life is a gift from Allah SWT, therefore every soul must be respected, including the right
to life of a child, whatever the reason. Islam views children as gifts with sacred status. When
born into the world, children are still holy and do not have sins. In the beliefs of the adherents
of the Islamic religion, a child can be a gift and a helper in the afterlife if parents are able to
educate him properly. But children can also be disastrous if parents fail to educate
them.Basically, the presence of children is eagerly awaited by every new family, although in

9
the end many new couples are delaying the birth of children for various reasons. The main
thing is because of economic problems. whereas for Muslims they should believe in the fortune
from Allah as Allah says in surah Al Isra[17] verse 31.
Allah says:

‫ق ۖ ن َ ْح ُن ن َْر ُز ق ُ ُه ْم َو إ ِ ي َّا كُ ْم ۚ إ ِ َّن ق َ ت ْ ل َ ُه ْم كَ ا َن‬ ْ ‫َو ََل ت َقْ ت ُل ُوا أ َ ْو ََل د َ ك ُ ْم َخ‬
ٍ ‫ش ي َ ة َ إ ِ ْم ََل‬
ً ِ ‫ط ئ ًا كَ ب‬
‫ير ا‬ ْ ‫ِخ‬

Means : Kill not your children for fear of want: We shall provide sustenance for them
as well as for you. Verily the killing of them is a great sin.
(Al-Israa' 17:31).

The above verse emphasizes the right of survival for every child born. in order to
support this survival, Islam outlines the various obligations of parents that must be
fulfilled. in addition to being a gift and blessing from God, in Islam children are also
considered as trials for their parents which can be the cause in the afterlife to be
admitted to heaven or even bring them to hell. as God says in surah at-Taghâbun [64]:
15.
Allah says:

‫ظ ي مٌ ِِ إ ِ ن َّ َم ا أ َ ْم َو ا ل ُ كُ ْم َو أ َ ْو ََل د ُكُ ْم ف ِ ت ْ ن َة ٌ ۚ َو َّللاَّ ُ ع‬

ِ َ‫نْ د َه ُ أ َ ْج ٌر ع‬
Means : Your riches and your children may be but a trial: but in the Presence of
Allah, is the highest, Reward.

In its position as a trial, the presence of children examines their parents, whether they are able
to care for, nurture and educate them, so that the child grows and develops as a good descendant
or more specifically becomes a pious child.
In order to fulfill the responsibilities as parents, Islam outlines the various obligations of
parents that must be fulfilled :10
a. First, the obligation to provide maintenance. Islam commands everyone to provide
for their immediate family, including their children. Allah says:

ْ ‫ت ذ َ ا الْ ق ُ ْر ب َ ٰى َح ق َّ ه ُ َو الْ ِم‬

‫س ِك ي َن َو ا بْ َن الس‬ ِ ‫ِو آ‬ ً ‫ب ِ ي ِل َو ََل ت ُب َ ذِ ْر ت َبْ ِذ‬
َ َ ‫ير ا‬

10
Hidayat,Taufik. Islamic Criminal Law Views On Physical Violence Against Children. (Jurnal Ilmiah Syariah
volume 15,No. 2,2016).p.118

10
 Means : And give to the near relatives their due, to the poor and the traveler, and
do not spend extravagantly. (Al-Isra [17]:26).
b. Second, the obligation to take care of children, especially in the form of education
and guidance, so that they are protected from things that lead them to evil. Allah
says:

ً ‫ي َ ا أ َي ُّ َه ا ال َّ ِذ ي َن آ َم ن ُوا ق ُوا أ َنْ ف ُسَ كُ ْم َو أ َ ْه لِ ي كُ ْم ن‬

ُ َّ ‫َار ا َو ق ُ و د ُهَا ال ن‬
‫اس‬
َ ‫َو الْ ِح َج‬
‫ار ة ُ عَ ل َ يْ َه ا َم ََل ئ ِ كَ ة ٌ ِغ ََل ظٌ ِش د َ ا د ٌ ََل ي َ عْ صُ و َن َّللاَّ َ َم ا‬
‫أ َ َم َر هُ ْم َو ي َ فْ ع َ ل ُ و َن َم ا ي ُ ْؤ َم ُر و َن‬

Means : O you who believe, protect yourselves and your families from the fire of
Hell, whose fuel is man and stone; its guardians are angels who are harsh, hard, and
do not disobey Allah in what He commands them and always do what is
commanded.(At-Tahrim [66] :6).
In order to maintain the self and family referred to by the verse above, it certainly includes the
obligation to provide physical and spiritual education. We can understand this from the words
of the Prophet Muhammad Saw. which means :
The Prophet said: "Honor your children and improve their education" (Hadith narrated by Ibn
Mâjah).
c. “Third, the obligation to be fair to children. Parents are obliged to be fair to their
children. Because every child has the same position. The Prophet said that means :
Fear Allah and be fair among your children “.(Hadith narrated by Muslim).
Unfair treatment will lead to feelings of favoritism and neglect among children.
Both have a negative impact on family life and especially on the development of
children.
Islam strictly and clearly prohibits child abuse. However, one hadith says "Command your
children to pray when they are seven years old. Beat them if they refuse to pray until they are
ten years old" (Abu Daud:495 and Ahmad:6650, authenticated by Al-Albany in Irwa'u Ghalil,
no. 247). This hadith certainly contradicts the concept that children should not be abused.
However, the existence of this hadith is not without a clear reason. Child abuse in Islam is
permissible if it does not exceed the limits and is used as a last resort. Child abuse in Islam is
permissible if it does not exceed the limits and is used as a last resort. It is also only used as an
educational measure, not for the purpose of punishing for no reason. Because if children are

11
left free without rules, it will have a bad impact on children. Children can deviate from religious
rules, act arbitrarily, and other negative behaviors. 11
The hadith above is often used as an argument by parents and teachers that in the world of
education it is permissible to beat children so that they want to learn and obey parents and
students. but many do not understand that there are limits to the extent to which parents or
teachers can punish their children and students.
Broadly speaking, the types of punishment in Islamic criminal law (jinayah) consist of qishash-
diyat, kafarat, hudud, and ta'zir. These four types of punishment have varied forms in
accordance with the different types of criminal offenses that are threatened. Qishash-diyat
relates to crimes against life and limb, varying according to the form of the crime (jarimah).
Similarly, with hudud, the forms are death penalty, cutting (hands or feet), dera (whipping,
beating), stoning (stoning to death), and exile. Meanwhile, ta'zir punishment has the most
diverse forms because the determination of its forms is the authority of the judge
(government).12
When educating children in Islam it is permissible to hit children as described in the hadith
above. but that method is done if the gentle way with advice or reprimand is not effective. An
educator must not hasten the pattern of violence. If all methods have been used by parents or
educators - whether through gentleness or stern reprimand, but have not produced results, then
it is permissible to hit without hurting and without causing injury. Thus, it is hoped that through
this last method, a child can experience change and become straight from any deviant behavior.
The following stages of correction are in accordance with the guidance of the Sunnah of the
Prophet Muhammad Saw. and the example of the Companions so that it can be understood how
the Islamic method of correcting and educating children, namely through direction and advice,
boycott, and physical punishment. For more details, please see the following description: 13
a. Through direction and advice to children Direction and advice are the first steps
taken by parents and educators in correcting mistakes made by a child.and educators
in correcting mistakes made by a child. In the Hadith narrated by Bukhari narrated
by Ali bin Abdullah through Sufyan,

11
Putri,Nurul Eka. Empat Model Kekerasan Terhadap Anak, Bagaimana Pandangan Islam?.(Times.Id.2020)p.1
12
Toha Andiko, “Reinterpretasi Sanksi Pidana Islam (Studi terhadap Pemikiran Prof. KH. Ibrahim Hosen, LML)”,
(Jurnal Madania Vol. XVII, No. 2, IAIN Bengkulu, Desember 2014).p.235
13
Abdullah Nashih Ulwan,2018. Pendidikan Anak dalam Islam, Insan Kamil : Solo.p.34-35

12
 Which means: 'Umar ibn Abi Salamah (may Allah be pleased with him) said: "I am the
stepson of the Messenger of Allah. was the stepson of the Messenger of Allah. At one
time, I stretched out my hand until it reached the edge of the tray. The Messenger of
Allah said, "O little child, mention the name of Allah, eat with your right hand, and eat
with your right hand. name of Allah, eat with your right hand, and eat what is near you."
This is how to eat. This is how I ate after that."
Based on the above Hadīth, reprimand or advice is the first step that can be taken in providing
direction or teaching as well as teaching. that can be taken in providing direction or teaching
as well as correcting children's mistakes.
b. Through boycotting the child
Boycott is done when there are deviations committed by children, but they are still
within the scope of faith and Islam.
In HR. Bukhari narrated by Yusuf bin Rashid, through Abdullah bin Mughaffal stated
that :
Which means :"On another occasion, Abdullah again saw the man hunting animals with
stones, he again rebuked him, "I have conveyed to you the saying of the Messenger of
Allah (S) that he forbade hunting animals with stones. I have conveyed to you the
saying of the Messenger of Allah (saws) that he forbade hunting with slingshots - or he
disliked it.with catapults - or he disliked it. Why are you still using catapults? I will not
speak to you again forever.
Based on the Hadith above, it can be understood that isolating or boycotting is one of
the ways that can be taken, if verbal advice or reprimand cannot correct a person's
mistakes.
c. Through punishments of various forms and levels.
One of the levels of punishment against children is beating. As for the issues related to
hitting children, there are several Hadiths that explain it, namely each of the Hadiths
narrated by Abu Dawud, narrated by. Tirmidzi narrated by Ahmad, and Daruquthni.
Which means: The Messenger of Allah (SAW) said, "Command a child to pray when
he is seven years old. When he reaches the age of ten, then beat him for prayer (if he
abandons it)." (HR. Abu Dawud from Sabrah bin Ma "bad al-Juhani ra.)
The above Hadīth legitimizes the punishment of spanking for children. children which
can be used as the last alternative when advice and isolation/sanctuary are not able to
correct the child who commits a mistake.

13
So it is quite clear that Islam does not teach violence against children even for educational
purposes. hitting in question is not the arbitrary right of parents and educators who can at will
without clear rules. and the hadith about the permissibility of hitting children does not make
parents or other educators immune to criminal law if they commit violence against children
that causes injury, let alone the violence committed makes the child traumatized and dies.
Hitting children in Islamic criminal law is legalized in the context of educating. In the book as-
syibhan by Shaykh Syamsuddîn al-Ambâbî mentions the correct procedure for hitting children
(the conditions of hitting):14
1. Spanking should be done intermittently
2. A distance must be given between two strokes, while the time gap is in case the effect
of the first blow has diminished,
3. In hitting should not lift the elbow, so that the pain effect caused is not dangerous,
4. A caregiver should not hit when he is angry,
5. Undo the intention to hit the child when he mentions the name of Allah,
6. It is not permissible to beat a child unless he is 10 years old.
Parents and educators need to pay attention to the forms of legal action that are
prohibited and not recommended in Islam There are several forms of punishment for
children that are not allowed in Islamic teachings. The prohibited forms of punishment
in question can be explained as follows: 15
a. Hitting children under the age of 10 (ten) years;
b. Making spanking a routine punishment, rather than minimizing it;
c. Hitting the face or vital/sensitive body parts of the child;
d. Hitting the child more than 10 (ten) times so as to
equal to the punishment for hudud;
e. Hitting the child on the same place repeatedly, not
spread out but focused in one place;
f. Hitting the child repeatedly without any interval to allow the pain of the first blow to
subside; f. Hitting the child repeatedly without any interval to allow the pain of the first
the first blow to subside;
g. Hitting a child with a dangerous hitting instrument;

14
Hidayat,Taufik. islamic criminal law views on physical violence against children. (Jurnal Ilmiah Syariah volume
15,No. 2,2016).p.122
15
Jamal Abdurrahman,2019. Islamic Parenting: Child Education The Prophet's Method, Aqwam : Solo.pp. 159-
164

14
 h. Hitting children in a state of anger (venting emotions);
i. Hitting a child who is seeking refuge in Allah Swt;
j. Hitting a child too hard and forcefully, for example by lifting the for example, lifting
the spanking tool high or swinging the spanking tool as hard as possible.
From the explanation above, it can be concluded that the crime of violence against children is
a criminal offense and is prohibited in Islamic criminal law. However, criminal responsibility
is removed if there is a more important benefit, but many parents and educators choose the
wrong way to discipline their children. Many parents and educators choose the wrong way to
discipline their children, so that the children tend to be defiant, which results in children being
even more naughty. Islamic teachings allow hitting in educating of course based on
predetermined provisions. If physical violence against children goes beyond the provisions set
out in Islamic law, then this is classified as a criminal offense of child abuse. The punishment
for perpetrators of criminal acts of violence against children is the same as the punishment for
perpetrators of criminal acts of persecution in Islamic criminal law.
Islamic law imposes the punishment of qisâsh for the perpetrators of the crime of persecution.
The qisâsh itself is to punish the perpetrator the same as what he has done to the victim. If the
perpetrator commits physical violence against the child so that the child is injured or has broken
bones then the perpetrator must also be injured or have his bones broken. If the violence against
the child takes the life of the child then the perpetrator must also be killed. 16
The source of Islamic law regarding qisâsh as the main punishment for the crime of intentional
persecution is the Qur'an Surah al-Baqarah verses 178-179, as follows:

which means: O you who believe! It is obligatory upon you to execute the punishment of
"Qisas" (equal recompense) in the case of those who are slain: free man for free man, and slave

16
Hidayat,Taufik. Islamic Criminal Law Views On Physical Violence Against Children. (Jurnal Ilmiah Syariah
volume 15,No. 2,2016).p.124

15
for slave, and woman for woman. And whosoever (the killer) shall obtain some pardon from
his brother (the slain), let him (the pardoner) follow a good manner (in exacting restitution),
and let him (the killer) make good the restitution. Such is a relief from your Lord and a mercy
of ease. But whoever exceeds the limit (in taking revenge), then for him is the punishment of
an unbearable punishment.And in the punishment of Qisas there is a guarantee of life for you,
O men of understanding, that you may have piety.(al-Baqarah[2]: 1798-179).
It is very clear that the punishment for anyone who commits violence against children is
qishâsh. Where qishâsh is an appropriate reply given to the perpetrator of the crime, which if
forgiven by the victim's family, then the substitute penalty is diyat, and the additional penalty
is the prohibition of inheritance or will. but in the event that the perpetrator causes the child to
die, there are differences of opinion in the views of the scholars.
In one of the mandatory conditions of qishâsh itself states that: The father is not punished for
killing his child. (Hadith narrated. Baihaqi), Parents are not punished for killing their children.
(Hadith narrated by Ibn Majah No.2661 and considered Saheeh by Al-Albani in Irwa' Al-Ghalil
No.2214).Al-Munawi argues that parents are not punished for killing their children because
they are the cause of the existence of children and it is impossible for children to be the cause
of the absence of parents. According to Imam Shafi'i, Imam Hanafi, Imam Ja'fari, Imam
Hambali said that he knew the hadith from many scholars that a father or parent is not punished
for killing his child.
Whereas according to Imam Shafi'i, Imam Hanafi, Imam Ja'fari, Imam Hambali said that he
knew the hadith from many scholars that a father or parent is not punished for killing his child.
For this reason, Imam Shafi'i, Imam Hanafi, Imam Ja'fari, Imam Hambali agree with At-
Tirmidhi. While Imam Malik disagrees with that, according to him parents killing their
children are still qisash. For this reason, Imam Shafi'i, Imam Hanafi, Imam Ja'fari, Imam
Hambali agree with At-Tirmidhi. Whereas Imam Malik disagrees with this, according to him
the parents are still subject to qishâsh, because according to him the hadith is interpreted only
for the crime of unintentional child murder. The action is to teach parents a lesson not to treat
their children's lives arbitrarily. 17
So in conclusion, child abuse in Islam is not allowed except in emergencies and there is no
other way. But even then it must be done on the condition that the punishment is mild and not

17
Sayyidah Nurfaizah.Hukuman Bagi Orang Tua yang Membunuh Anaknya perspektif Hukum Pidana Islam Dan
Kuhp.(Al-Jinayah vol 2 No 2 des 2016)p.211-212

16
persecuting. Islam recommends treating children with love and understanding religious values
from an early age. That way the child grows into a person with good character.
VII. Conclusion
From the formulation of criminal acts of violence against children between Indonesia (Law
No. 35 of 2014) and Malaysia (Akta Kanak-Kanak 2001) and from the view of Islamic law can
be formulated some important things for this comparison, namely:
Firstly, Comparison of punishment for child abuse in Malaysia, the maximum fine of RM
50,000 (fifty thousand Malaysian Ringgit) or approximately Rp. 170,000,000 (one hundred
seventy million rupiah) and imprisonment of up to 20 years . In terms of fines punishment in
Malaysia is lighter than the punishment in Law No. 35 Year 2014 Indonesia, while for the
lowest fine of Rp. 72,000,000.00 (seventy two million rupiah) or approximately Rm 21,000
(twenty one thousand Malaysian ringgit) and the highest of Rp. 35 Year 2014 Indonesia,
meanwhile for fines the lowest is Rp. 72,000,000.00 (seventy two million rupiah) or
approximately Rm 21,000 (Twenty one thousand Malaysian ringgit) and the highest is Rp.
5,000,000,000.00, (five billion rupiah) or approximately Rm 1,470,000 (one million four
hundred and seventy thousand Malaysian ringgit) at an exchange rate of Rm. 1 = Rp 3400 with
a minimum imprisonment of 3 years and 6 months and a maximum of 15 years.
Secondly, in the 2001 Childs Act, namely people in general and parents (fathers and mothers)
and caregivers, while the aspects of the perpetrators in Law No. 35 of 2014 are divided into,
namely people in general and parents (fathers and mothers), guardians, caregivers of children,
educators, or education personnel.
Third, the criminal system, in Law No. 35 of 2014 adheres to two systems, namely a special
minimum and a special maximum, this is adjusted to the severity of each formulation of the
offense of violence against children while the 2001 Childhood Act applies a special maximum
system with a combined alternative between fines and imprisonment.
Fourth, the formulation of the definition of a child in Malaysia and Indonesia is formulated
based on the ratification of the Convention on the Rights of the Child, namely a person is said
to be a child if he has not reached the age of 18 years. Where in Indonesia more specifically
also mentions including those in the womb are also called children while the explanation of
forms of violence against children, namely physical violence, psychological violence, sexual
violence and social violence is a form of violence formulated by Malaysia and Indonesia, but
in Malaysia the formulation of the offense is more detailed and there are adjustments from the
ratification of the Convention on the Rights of the Child, while in Indonesia it is still formulated
in a broad sense so that it does not formulate the offense in detail.

17
Fifth, in terms of specialized agencies that deal with child issues, in Malaysia this is the task
of the Social Welfare Department, meaning that there is no specialized agency for children.
Meanwhile, in Indonesia, a special body has been formed, namely the Indonesian Child
Protection Commission (KPAI).
Lastly, Although both countries are countries with a majority population embracing Islam, it
will be difficult to apply Islamic law in both countries because of rejection not only by non-
Muslims but also by some of the Muslims themselves who follow the different opinions of
Muslim scholars in the past and present.
To protect or reduce violence against children requires cooperation from various parties,
especially parents. The governments of both countries must play an active role in making a rule
that really covers all aspects in terms of ethnicity, religion, and customs so that the authorities
and the public are not confused and can know the limits in treating children. Preventive
measures also need to be taken such as premarital courses that not only learn about the rights
and obligations as husband and wife but also learn about the rights of children that must be
fulfilled. and if possible parents and teachers as people who are most often in the child's
environment should also be equipped with psychological knowledge so that in case of violence
against children they can more quickly find out the changes that occur in children.Education
about sexual issues is still very taboo to discuss in both countries let alone discuss it with
children, but judging from the increasing cases of sexual abuse against also need to be given
to children so that they know what other people can and cannot do to them. And as a preventive
measure, if the government can afford it, in every school it is necessary to install CCTV which
is used not only to monitor the theft of school goods but to monitor the behavior of children so
that violence against children can be prevented. avoid violence perpetrated by nurses and other
family members or even by other people.

18
 VIII. BIBLIOGRAPHY

Abdullah Nashih,Ulwan, 2018. Pendidikan Anak dalam Islam, Insan Kamil:Solo

Fadhli,Asbabul. Aspek Pencegahan Kekerasan terhadap Anak Dalam Persfektif Islam (AR-
RISALAH vol 2 No 1,June 2012)
Hamida aulia, Setiyono joko. Analisis Kritis Perlindungan Terhadap AnakKorban Kekerasan
Dalam Rumah Tangga:Kajian Perbandingan Hukum. (Jurnal Pembangunan Hukum
IndonesiaProgram Magister Hukum, Fakultas HukumVolume 4, Nomor 1, Tahun 2022)
Hidayat Taufik. Islamic Criminal Law Views On Physical Violence Against Children. (Jurnal
Ilmiah Syariah volume 15,No. 2,2016).
Indonesian Child protection law No. 35 of 2014 concerning amendments to law No. 23 of
2002
Jamal Abdurrahman, 2019. Islamic Parenting: Child Education The Prophet's Method,
Aqwam : Solo
Natasya,Farah. Alarming developments in child abuse.The sun daily,sun,jul 2 2023).
https://www.thesundaily.my/home/alarming-developments-in-child-abuse-BC10470573
Malaysian Children Act 2001 (Act 611)
Putri,Nurul Eka. Empat Model Kekerasan Terhadap Anak, Bagaimana Pandangan
Islam?.(Times.Id.2020)
Sayyidah Nurfaizah.Hukuman Bagi Orang Tua Yang Membunuh Anaknya Perspektif Hukum
Pidana Islam Dan Kuhp.(Al-Jinayah vol 2 No 2 des 2016)
Sushma Kapoor, Domestic Violence Against Women and Girls, (USA: Innocenti Research
Center-UNICEF, 2000),
Toha Andiko, “Reinterpretasi Sanksi Pidana Islam (Studi terhadap Pemikiran Prof. KH.
Ibrahim Hosen, LML)”, (Jurnal Madania Vol. XVII, No. 2, IAIN Bengkulu, Desember 2014)
Putri, nuruk eka : Empat Model Kekerasan Terhadap Anak, Bagaimana Pandangan
Islam?.(Times.Id.2020)
Yusop,Yusnani. Child Abuse In Malaysia: Legal Measures For The Prevention Of Crime And
Protection Of The Victim.(Investigation Officer, Crime Investigation Department, Royal
Malaysia Police, Malaysia)

19