Malaysian Journal of Syariah and Law (MJSL)
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الضمانات المستحدثة لحماية المستهلك في التجارة الإلكترونية: Innovative Guarantees for Consumer Protection in Electronic Commerce: Comparative Study
No full textThe growing volume of electronic commerce and the increase in the number of internet users worldwide promotes policymakers in many countries to provide legal guarantees to consumers in e- commerce. This is due to the inability of current general rules to provide this type of protection for them .The purpose of this paper is to examine the right to withdraw from a contract as a legal guarantee to the consumer, to indicate the necessity to adopt this right within the consumer protection legislation and e-commerce legislation in Iraq. The choice to view the product’s provisions are examined too in this paper regarding to the Islamic jurisprudence and Iraqi civil law to indicate the extent of protection that ‘the choice to view’ to the consumer in e-commerce. The paper executes the descriptive analytical and comparative approaches in this research. The findings reveal that consumer in electronic commerce can benefit from the protection that ‘the choice to view’ in Islamic Fiqh (jurisprudence) and Iraqi civil law can achieve. Thus, the consumer has the right to withdraw from a contract after seeing the goods and send it back to the seller. In conclusion, they can be reimbursed according to certain conditions. Iraqi legislator can adopt the right to withdraw from the contract in addition to the choice to view to ensure more protection for the consumer
THE LEGAL FRAMEWORK ON REBELLION AND INSURGENCY IN ISLAMIC LAW AND CUSTOMARY INTERNATIONAL LAW: A REVIEW
Get PDFOver the years, Muslim countries have been faced with wave of violence mostly related to insurgency or rebellion, leading to loss of lives and property on an unprecedented scale. Interestingly, rebellion and insurgency have a long, controversial, and deeply rooted history in Islam. As such, it is one of the most thoroughly studied and regulated concepts in Islamic law. Other non-Muslim societies too, have faced these kinds of challenges at different stages of their development, underlining the literature on rebellion and insurgency in customary international law. Therefore, from Muslim to non-Muslim states, this challenge is not a new one: there clearly is no shortage of legal regulation from either side. Notwithstanding, the menace of insurgency related violence seems to have defied all attempts at regulation. This paper compares the regulation of insurgency and rebellion under Islamic law and customary international law with a view to identifying the similarities or otherwise. It thereby relates the trends in rebellion and insurgency in both Muslim and non-Muslim countries to the legal regime in both systems. The paper finds that the legal regime regulating rebellion and insurgency in Islamic law and customary international law are similar, with trivial variances in substance. This being the case, it raises the question if the legal regulation of these issues has had any effect on the unending violence that has so far destroyed several states and led to loss of millions of lives. The paper concludes that notwithstanding the seeming laxity of the legal regimes regulating insurgency and rebellion in both Islamic law and customary international law, the genesis of the problem might have been with application rather than the substance of the law
دور البيئة التشريعية في تطبيق معايير الحلال في المنتجات والخدمات وملائمة النظام القانوني الليبي استرشادا ʪلمعايير الماليزية : Legal environment role on the application of Halal product and serves standards and The suitability of Libyan legal in light of Malaysian standards
No full textHalal standards are based on religious values that are unique to other legal systems. Consequently, the legislation of the surrounding environment may have direct effects on the application of these standards, and that these effects become more complex the more the environment embodied in the contents clash with the Shariah-based Halal. In order to show the importance of the Halal sector in both religious and investment aspects, this paper examined the contribution of the legislative environment to Halalization and how Halal standards could be adopted in the products and services by the existing legal systems of the countries that have not adopted them, through comparison between legal systems. The paper used the Libyan legal system as a case study because its system is less concerned about Halalization. After analyzing the laws related to Halal products and services, it was found that the Libyan legislative environment is rich with the contents of Halalization; even if the Halalization is not codified in the contemporary concept just as stated in the Malaysian standards that the paper adopts as a criterion for the comparison, it implicitly includes most of the contents of these standards. The paper recommends that the Libyan system should adopt the Halal standards to benefit from this sector.Halal standards are based on religious values that are unique to other legal systems. Consequently, the legislation of the surrounding environment may have direct effects on the application of these standards, and that these effects become more complex the more the environment embodied in the contents clash with the Shariah-based Halal. In order to show the importance of the Halal sector in both religious and investment aspects, this paper examined the contribution of the legislative environment to Halalization and how Halal standards could be adopted in the products and services by the existing legal systems of the countries that have not adopted them, through comparison between legal systems. The paper used the Libyan legal system as a case study because its system is less concerned about Halalization. After analyzing the laws related to Halal products and services, it was found that the Libyan legislative environment is rich with the contents of Halalization; even if the Halalization is not codified in the contemporary concept just as stated in the Malaysian standards that the paper adopts as a criterion for the comparison, it implicitly includes most of the contents of these standards. The paper recommends that the Libyan system should adopt the Halal standards to benefit from this sector
Islamic Law and Trademark Protection
Get PDFProtection of trademark in Islamic Law is covered under verses of the Holy Quran and traditions of Prophet Muhammad ï·º. Trademark is one of the component of Intellectual Property Law, which is protected under Islamic Law. Islamic law are those teachings which were revealed on the last prophet Muhammad ï·º, for the betterment of human beings in both worlds. Islamic Law protects rights of an individual whether they are material like property rights or immaterial like Intellectual Property rights. Protection of wealth is one of the Maqasid-ul-Sharia, which is the public right and are fully preserved under an Islamic Law. Almighty Allah says in the Holy Quran that “Do not eat the property of another with unlawful means except with a valid agreement, solemnized with a valid consent from both sidesâ€. Prophet Muhammad ï·º said that he who copies another’s work is not one of us. Prophet Muhammad ï·º went to Syria as a trader with the wealth of his preceding wife Hazrat Khadija RA. Imam Abu Hanifa and Imam Bukhari used to work as traders besides their exceptional works in Fiqh and Hadith. All types of trade and investment activities are valid, legal and protected under Islamic Law unless clearly prohibited by Almighty Allah in the Holy Quran or by Prophet Muhammad ï·º in the Sunnah. The transaction must be clear from Riba/Interest; which is an excess that has no corresponding consideration in exchange of property for property. The subject matter of the transaction must not be uncertain, and the purpose of the transaction and the activities governed under the contract must be legal under the light of the Holy Quran and Sunnah of Prophet Muhammad ï·º. Intellectual Property is protected under Islamic Law, which is that area of law, which concerns legal rights, associated with creative efforts, commercial reputation and good will. Intellectual Property Law includes patent for the protection of inventions, copyright for the protection of literary and artistic works and trademark for the protection of marks, signs, words and trade names, which distinguishes goods and services of one undertaking from goods and services of other undertakings, which must be distinctive and non-descriptive because an undescriptive trademark is a unique trademark which is easy to be registered and adhered by the public at large. The purpose of trademark is to provide an opportunity to the public to distinguish goods and services of one undertaking from goods and services of other undertakings and to adhere the source of goods and services. Trademark is protected under Islamic Law, but it does not allow the right holder to held illegal activities under a legal trademark. The trademark which is protected under Islamic Law is that trademark which is used for the promotion of legitimate goods and services
ماهية السياحة الترويحية وتأصيلها وضوابطها في الفقه الإسلامي: The concept of Recreational Tourism and Its Roots And Controls In Islamic Jurisprudence
Get PDFهدفت هذه الدراسة إلى تحليل ماهية السياحة لغة واصطلاحاً واستعمال القرآن والسنة للمصطلح، ثم بيان ماهية السياحة الترويحية، إضافة إلى التأصيل الشرعي للسياحة الترويحية وبيان لأهم ضوابط السياحة الترويحية في الفقه الإسلامي، وانتهاء ببيان الحكم الشرعي في السياحة الترويحية في البلاد غير الإسلامية، متبعة المنهج الوصفي التحليلي. توصلت الدراسة إلى نتائج عدة؛ منها: كون السياحة الترويحية تدخل ضمن المباحات، شريطة التقيد بمجوعة ضوابط كاستحضار نية العبادة واحتساب الأجر فيها، وأن لا تؤدي السياحة الترويحية إلى تضييع الأوقات بلا فائدة كبيرة، وأن لا يؤدي التخطيط للسياحة الترويحية إلى التقتير على النفس، أما حكم السياحة الترويحية في البلاد غير الإسلامية، فقد خلصت الدراسة إلى أن الأصل جواز السفر والانتقال لبلاد المسلمين وغير المسلمين إلا إذا وجد مانع قانوني التزاماً بطاعة ولي الأمر، ووفقاً لمجموعة ضوابط شرعية.
The aim of this study is to analyze the nature of tourism, language and terminology, use of Qur\u27aan and Sunnah for the term, then what is the meaning of recreational tourism, in addition to the legalization of recreational tourism and a statement of the most important rules of recreational tourism in Islamic jurisprudence, and ending with the statement of Islamic ruling in recreational tourism in non-Muslim countries, Analytical analysis. The study has reached several results, including: The fact that recreational tourism is included in the permissibility, provided that a set of controls is maintained, such as refraining from worship and calculating the wage, and that leisure tourism does not lead to waste of time without great benefit, and that planning for recreational tourism does not cause self-sacrifice. Ruling on recreational tourism in non-Muslim countries, the study concluded that the origin passport and transfer to the country of Muslims and non-Muslims, unless there is a legal impediment to obey the guardian, according to a set of legitimate controls.هدفت هذه الدراسة إلى تحليل ماهية السياحة لغة واصطلاحاً واستعمال القرآن والسنة للمصطلح، ثم بيان ماهية السياحة الترويحية، إضافة إلى التأصيل الشرعي للسياحة الترويحية وبيان لأهم ضوابط السياحة الترويحية في الفقه الإسلامي، وانتهاء ببيان الحكم الشرعي في السياحة الترويحية في البلاد غير الإسلامية، متبعة المنهج الوصفي التحليلي. توصلت الدراسة إلى نتائج عدة؛ منها: كون السياحة الترويحية تدخل ضمن المباحات، شريطة التقيد بمجوعة ضوابط كاستحضار نية العبادة واحتساب الأجر فيها، وأن لا تؤدي السياحة الترويحية إلى تضييع الأوقات بلا فائدة كبيرة، وأن لا يؤدي التخطيط للسياحة الترويحية إلى التقتير على النفس، أما حكم السياحة الترويحية في البلاد غير الإسلامية، فقد خلصت الدراسة إلى أن الأصل جواز السفر والانتقال لبلاد المسلمين وغير المسلمين إلا إذا وجد مانع قانوني التزاماً بطاعة ولي الأمر، ووفقاً لمجموعة ضوابط شرعية.
The aim of this study is to analyze the nature of tourism, language and terminology, use of Qur\u27aan and Sunnah for the term, then what is the meaning of recreational tourism, in addition to the legalization of recreational tourism and a statement of the most important rules of recreational tourism in Islamic jurisprudence, and ending with the statement of Islamic ruling in recreational tourism in non-Muslim countries, Analytical analysis. The study has reached several results, including: The fact that recreational tourism is included in the permissibility, provided that a set of controls is maintained, such as refraining from worship and calculating the wage, and that leisure tourism does not lead to waste of time without great benefit, and that planning for recreational tourism does not cause self-sacrifice. Ruling on recreational tourism in non-Muslim countries, the study concluded that the origin passport and transfer to the country of Muslims and non-Muslims, unless there is a legal impediment to obey the guardian, according to a set of legitimate controls
LEGAL EDUCATION: PRODUCING "PRACTICE-READY" CANDIDATES IN MALAYSIA
Get PDFDespite the existing exam requirements in a bachelor of law degree, it is claimed that local law graduates are ill-prepared for legal practice, lack of fluency in English, particularly in writing and speaking skills. This paper explores efforts made by the law schools in Malaysia within their existing curriculum to prepare students for future legal practice careers and to cater to the needs of the legal industry. The requirement of a recognized law degree has been fulfilled by most law schools, and students studying in law schools without recognition by the Legal Profession Qualifying Board (LPQB) would have to sit for Certificate of Legal Practice (CLP) to qualify as a practitioner. Nevertheless, the Bar Council has been proposing for additional curriculum of Common Bar Course and Common Bar Exam. It is claimed that these additional stage of common bar course and exam would be beneficial for candidates alongside their somewhat “inefficient†bachelor of law degree. Sitting for this bar exam would allow candidates to qualify as “qualified person†under the law. Nevertheless, this paper holds on to the view that training in chambers or the pupillage period, would be the best place platform for law graduates to equip themselves with hands-on experience in legal practice, and that the “higher-standard†of paper-based exams proposed by the Bar would be futile in keeping up with the expectations of the legal industry for “practice-ready†candidates.
(Key words: legal education; academia; common bar exam
تقويم دور بورصة سوق السلع الماليزية في إصلاح التورق المصرفي المنظم : Evaluation of the role of Bursa Suq Al Sila\u27 Malaysia for the reform of organized banking tawarruq
No full textThe study aims at clarifying and evaluating the role of the Bursa Suq Al-Sila\u27 in reforming financial operations based on organized banking tawarruq. This will be through a brief description of individual tawarruq, the organized banking tawarruq and the opinion of the scholars in this regard, along with a brief explanation of Bursa Suq Al-Sila\u27 and the process of tawarruq applied therein. This will be followed by mentioning the most important Sharia problems due to which the jurisprudential councils, some Shari\u27a bodies and majority of contemporary scholars have disallowed the organized banking tawarruq, which takes place in international commodities by international and other exchange markets. These problems include: a Fake goods used in the process of tawarruq and their unavailability, b. repeating tawarruq operations on a single commodity without changing its place, c. dominance of shame dealings on the transactions, d. impossibility of taking possession of the goods, e. prohibited collusion within the deals and other Sharia problems. This will be followed by the researcher’s explanation and evaluation of the role played by the Bursa Suq Al-Sila\u27 in order to avoid those sharia problems mentioned in the process of banking tawarruq. The study concluded that the process of banking Tawarruq throughout the Bursa Suq Al-Sila\u27 Malaysia is better and more preferable than many popular tawarruq operations in the world, for the scholars who see the permissibility of banking Tawarruq, and it is a reform of some important aspects such as confirming the existence of the commodity, not using the same commodity again in the transactions and that the dealings should be real and not shame. Nevertheless and despite this, it is not the desired goal that scholars and researchers try to achieve in the Tawarruq, because some of the Sharia problems still exist in the matters related to the shame transactions and taking possession of the commodity.The study aims at clarifying and evaluating the role of the Bursa Suq Al-Sila\u27 in reforming financial operations based on organized banking tawarruq. This will be through a brief description of individual tawarruq, the organized banking tawarruq and the opinion of the scholars in this regard, along with a brief explanation of Bursa Suq Al-Sila\u27 and the process of tawarruq applied therein. This will be followed by mentioning the most important Sharia problems due to which the jurisprudential councils, some Shari\u27a bodies and majority of contemporary scholars have disallowed the organized banking tawarruq, which takes place in international commodities by international and other exchange markets. These problems include: a Fake goods used in the process of tawarruq and their unavailability, b. repeating tawarruq operations on a single commodity without changing its place, c. dominance of shame dealings on the transactions, d. impossibility of taking possession of the goods, e. prohibited collusion within the deals and other Sharia problems. This will be followed by the researcher’s explanation and evaluation of the role played by the Bursa Suq Al-Sila\u27 in order to avoid those sharia problems mentioned in the process of banking tawarruq. The study concluded that the process of banking Tawarruq throughout the Bursa Suq Al-Sila\u27 Malaysia is better and more preferable than many popular tawarruq operations in the world, for the scholars who see the permissibility of banking Tawarruq, and it is a reform of some important aspects such as confirming the existence of the commodity, not using the same commodity again in the transactions and that the dealings should be real and not shame. Nevertheless and despite this, it is not the desired goal that scholars and researchers try to achieve in the Tawarruq, because some of the Sharia problems still exist in the matters related to the shame transactions and taking possession of the commodity
MALAYSIAN OUTER SPACE LAW: THE WASATIYYAH APPROACH
Get PDFWasatiyyah is not a mathematical moderation. It is a form of just evaluation that applies the Islamic conception of justice which asserts putting things in its proper places. Therefore, it should be defined and interpreted according to each circumstance surrounding the issues. With regards to the application of wasatiyyah in other field like outer space law, it requires analysis of the legal rules of outer space activities based on relevant elements of maqasid. This article highlights some legal rules proposed for Malaysia. It analyses each circumstances in determining whether the wasatiyyah approach is essential. The article applies the library research method including analysing the works of authoritative writers, as well as the United Nations international conventions on outer space. The findings demonstrate that the wasatiyyah approach is appropriate and proper to be applied in formulating and drafting Malaysian outer space law. It has been proven as well that it is capable of generating an excellent outcome of Malaysian space legislation
PENGARUH SISTEM MATRILINEAL DALAM ADAT NEGERI SEMBILAN: PERSPEKTIF SYARAK
Get PDFAdat perpatih yang diamalkan di Negeri Sembilan dan daerah Naning serta Alor Gajah Melaka bermula dari dua bersudara Datuk Perpatih Nan Sebatang dan Datuk Katamanggungan. Keduanya memiliki pertalian darah sama ibu namun berlainan bapak. Datuk Perpatih Nan Sebatang adalah pengasas kepada adat perpatih dan Datuk Katamanggungan adalah pengasas kepada adat temenggong. Adat perpatih mengamalkan sistem matrilineal yang mengambil garis keturunan dari sebelah ibu. Sedangkan adat temenggong mengamalkan sistem garis keturunan dari sebelah bapak. Dan inilah perbezaan yang mendasar antara adat perpatih dengan adat temenggong. Sistem matrilineal yang diamalkan dalam adat Perpatih memberikan pengaruh yang sangat besar bagi pelaksanaan adat. Misalnya dalam perkahwinan dan politik, sistem matrilineal memegang peranan yang sangat penting bagi terlaksananya dua perkara ini . Ramai yang beranggapan bahawa sistem matrilineal yang diamalkan ini bertentangan dengan amalan syarak, kerana menjadikan susur alur wanita sebagai penentu bagi pelaksaan perkahwinan dan politik. Menerusi artikel ini penulis akan berusaha menghuraikan beberapa isu mengenai perkahwinan, perceraian, dan politik dalam adat perpatih, serta pandangan syarak terhadap sistem matrilineal yang diamalkan dalam adat ini
COMPROMISING FOREST ENVIRONMENT IN PENINSULAR MALAYSIA: THE RIGHTS OF PUBLIC TO ENVIRONMENTAL INFORMATION
Get PDFoai:ojs.pkp.sfu.ca:article/1Well managed forests that ensure the conservation of resources are not only significant for the communities dependant on forests but also for ecological service for the benefit of wider society. Nevertheless, in recent years the riches of nature particularly forest seems to be abandoned as a result of rapid and mixed development. This paper highlights the importance of the rights of public in Peninsular Malaysia to be involved with forest environmental information in any stages of environmental issues up to decision-making processes where the principle 10 of the Rio Declaration comes into discussion. With growing recognition of the rights of the indigenous peoples to land and forest resources, issues regarding the Orang Asli communities as an important stakeholder in forests are also discussed. Supported by contemporary issues and cases, even though public participation seems to be properly stated in the relevant legal content, regrettably in term of public participation in forest environment, this concept is seemed not favoured by those in authority because it is seen as a factor which may impede progress of the development project. This paper infers that the concept of public participation indeed seeks involvement of those potentially affected by or interested in a decision. Furthermore, it is now emerged as a concept which is considered as vital part of democratic governance to enhance accountability. Thus, as a matter of fact, environmental information is a mere report rather than to be disclosed to public