Malaysian Journal of Syariah and Law (MJSL)
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UNDERSTANDING THE CONSTITUTION: THE NEED FOR A PARADIGM SHIFT
Get PDFThe Federal Constitution of Malaysia proclaims itself to be the supreme law. As rules regulating the system of governance, the constitution is the focal points in resolving disputes regarding rights and responsibilities of the government and the governed. The courts in applying the constitution in resolving contentious disputes sometime arrive at erroneous conclusions either through misinterpretation or misunderstanding. A correct interpretation and understanding of the constitution require an appreciation of its history and its spirit. This paper considers the importance of the constitution by looking at the problem in construing the constitution and provides suggestions in ensuring proper application of the rules
APLIKASI PRINSIP KEBAJIKAN KANAK-KANAK DALAM KES HADANAH
Get PDFThis article discusses about the principle of the welfare of the children or the best interest of the children in determining custody decisions under Islamic jurisdictions. Although the qualifications of the conflicting parties are a matter of great importance, the welfare of the children is the paramount consideration with the aims protecting the childrens interests. The qualifications\u27 aspects or other matters are examined only insofar as they relate to their welfare. The discussions also evolve regarding irresponsible and neglectful actions committed by the parents denying the rights and welfare of their own children
EXPLANATORY NOTE ON ANTI MONEY LAUNDERING (AMENDMENT) ACT 2003
Get PDFThis article discusses some of the changes brought about by the amendments of Anti Money Laundering (Amendments) Acts 2003. It examines whether the legal principles under this law are able to address the scandals which have emerged in recent years pertaining to auditors. It also investigates whether the legal principles under criminal law impose additional duties and obligations on auditors as opposed to those duties and obligations imposed under the company law. The study finally examines whether action can be brought against the auditors and the difficulties faced in doing so. These issues are extremely crucial because auditors profession is becoming a high-risk profession. This study suggests that the current legal framework under criminal law governing auditors must be reassessed in the wake of the scandals involving auditors both in the domestic and international forefront
COURT-ANNEXED MEDIATION IN RESOLVING DISPUTES RELATING TO FAMILY IN MALAYSIA: WHAT WE NEED TO KNOW BEFORE WE GO FORWARD
Get PDFThis article aims to, firstly, introduce court-annexed mediation in resolving family disputes in Malaysia. Secondly, it will attempt to identify the advantages and disadvantages of court-annexed mediation to resolve disputes relating to family matters, both in the Syariah and Civil Courts in Malaysia. Thirdly, it will provide recommendations to promote CAM. A study was made on the important aspects pertinent to the conduct of mediation in the form of sulh at the Syariah Courts in the State of Selangor which shares uniformed sulh processes used in other syariah courts from other states. Results of the study indicated that the current implementation of CAM in the Syariah Court is guided by a comprehensive set of statutory rules pertaining to sulh whereas the Civil Court is not guided even by a Mediation Act. In addition to that, the study also showed that there are similarities in terms of mediation process practiced in Majlis Sulh with the recommended practices of mediation
ASSESSING THE WORKING DRAFT OF THE HAGUE CONVENTION ON THE INTERNATIONAL RECOVERY OF CHILD SUPPORT AND OTHER FORMS OF FAMILY MAINTENANCE: MALAYSIAN SHARiIAH PERSPECTIVE
Get PDFThis article examines some of the key provisions in the Working Draft of the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance from the Shariah perspective and appraises the current practice of the Shariah Courts in Malaysia in the light of them. Part One of this article provides an overview on the Malaysian legal system as a backdrop to Part Two which is an analysis on the extent of application and implications of Articles 1, 2, 3 and 15 of the said Convention from the Shariah perspective. The objective is to highlight problems and to suggest improvements and modifications to reflect international compromise
MANHAJ DAN DAWABIT PENGELUARAN FATWA: METHODOLOGIES AND PRINCIPLES IN ISSUING FATWA
No full textThis article intends to examine the concept of manhaj and dawabit in issuing a fatwa. An account for manhaj attained through the consensus of fiqh scholars\u27opinions to assess its validity and compatibility with the syariah rulings. It further argues the importance of the knowledge of social science as an additional tool in issuing fatwa and extracting syariah rulings. It is acknowledged that issuance of fatwa only focuses on the zanniyy matters. However, the using of dawabit requires strict monitoring so that it will not go beyond the limits enshrined in the Quran and Sunnah. In principle, dawabit employed by the Prophet\u27s companions had been arranged according to the systematic rules, known as manhaj or methods. A coherent and certain manhaj is the sole guideline referred to by the mujtahid in issuing fatwa from time immemorial. To comprehend the manhaj is vital to enable us to distinguish the thoughts and Ideas that were primarily based on correct principles and reasoning from those merely based on speculation or assumptions
A LICENCE TO KILL PVS PATIENTS
No full textEuthanasia remains the subject of ongoing intense debate worldwide. The practice of painlessly putting to death persons suffering from incurable conditions or diseases indeed brings together with it a lot of debate and medical dilemma. Groups in favour or opposing it both have their own strong arguments. The recent decision in the United States involving Terri Schiavo has indeed rekindled interest worldwide in this controversy. Claims that every human has the right to live are normally defeated by the "best Interest argument". Thus this paper aims to focus on passive euthanasia applied upon terminally ill patients who are believed to no longer benefit from any curative treatment. Dilemmas and Issues on whether to "withdraw" or "withhold" treatment in palliative care will also be attempted. Upon whom does the responsibility to decide such matters lie on and does it not turn people into playing God? The current method utilized in bringing about death and conditions allowing such practice to be done will also be included. Finally through a doctrinal approach, the paper will also shed light and analyse the controversial death of Terri Schiavo recently while at the same time compare the issue from the Islamic perspective
PENGAJARAN UNDANG-UNDANG SYARIAH DAN SIVIL: SATU PENDEKATAN DALAM PERBAHASAN DALALAT AL-ALFAZ ILMU USUL FIQH: THE TEACHING OF SHARIAH AND CIVIL LAW: AN APPROACH IN THE DALALAT AL-ALFAZ DEBATE IN USUL FIQH
No full textDiscussion of Dalalat al-Alfaz is vital in Usul Fiqh. It refers to the understanding of lafz in Quran and Sunnah. Conventionally, discussion on Dalalat al-Alfaz is merely taught to comprehend the meaning of lafz in al-Quran and Sunnah. Conversely, Dr. Abdul Karim Zaydan in his book "Al-Wajiz fi Usul al-Fiqh" applied the concept of Dalalat al-Alfaz to comprehend alfaz in Egyptian and Iraqis laws. This article attempts to initiate a practical method in teaching Usul Fiqh to students by applying the maxims in Dalalat al-Alfaz to comprehend the Shariah dan civil law in Malaysia. It attempts to familiarize the students with these two laws. With that, ultimately, the students are competent to comprehend the theory of Dalalat al-Alfaz and apply it in reading Shariah and civil law in Malaysia, for having enhanced understanding of them
A SHARI\u27AH PERSPECTIVE ON THE "LETTER OF OFFER" AS PRACTISED BY THE ISLAMIC FINANCIAL INSTITUTIONS: A COMPARATIVE STUDY WITH THE MALAYSIAN LAW OF CONTRACT
No full textSince 1983, Malaysia has implemented an Islamic banking system with the establishment of Bank Islam Malaysia Berhad side by side with the conventional banking system. To date, Malaysia has 6 local Islamic Banks, 3 foreign Islamic Banks and in 2004 the Islamic Banking assets in Malaysia amounted to RM89 billion, accounting for 9.9 per cent of total banking asset. Even though Malaysia has good experience in implementing Islamic banking and finance based on the foregoing facts, it is observed that not many practitioners, even bankers, are aware of the issue of the Shar\u27iah standing on the "Letter of Offer" as practised by the islamic financial institutions. Personnel involved in Islamic banking and finance might not be aware that there are dissimilarities in the Shari\u27ah and legal standing on the status of the Letter of Offer. It is very essential to discuss the exact Shari\u27ah standing on this issue because it is the determining factor to the validity of the transaction of the financing products. The writers intend to explore the Shari\u27ah view on the Letter of Offer and will make a comparative legal study with the Malaysian law of contract
KECUAIAN DAN PENENTUAN LIABILITI DALAM KES KEMALANGAN JALAN RAYA MENURUT UNDANG- UNDANG ISLAM: NEGLIGENCE AND DETERMINATION OF LIABILITY IN THE CASE OF ROAD ACCIDENTS ACCORDING TO ISLAMIC LAW
No full textThis article elaborates the position of negligence as a factor in causing road accidents. The focus is on Islamic law and how the liability of parties is determined. The determination of liability depends on how the accident occurs. Whether it is within or beyond a driver\u27s control, islamic law has the explanation for both. In the case of road accidents, negligence can be established if the duty of care is breached. Vehicle speed is something within the control of a driver. Failure to obey the speed limit amounts to a breach of duty on the road and is considered as negligence