Malaysian Journal of Syariah and Law (MJSL)
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INTERFAITH MARRIAGE CONTROVERSIES IN SEMARANG: AN ANALYSIS OF QUR\u27ANIC LEGAL EXEGESIS
Full text linkInterfaith marriage in Semarang has become a controversial issue, challenging established religious, cultural, and legal norms. The study aims to address two key questions on how Indonesian society responds to interfaith marriage and what role does the Qur\u27an play in the interfaith marriage controversy in Semarang. Through this study, we seek to gain an in-depth understanding of the interaction between religious teachings and social responses, with the broader aim of enhancing insights into the influence of Qur\u27anic exegesis on interfaith marriage dynamics. Th study adopts a qualitative approach, utilising document analysis and in-depth interviews. Primary participants include interfaith couples and Indonesian netizens. Data collection is conducted through interviews, field observations, and document analysis, including Qur\u27anic exegesis, religious decrees, fatwas, and public commentary. Thematic analysis is applied to identify evolving patterns in Islamic legal understanding and its impact on social harmony. In Semarang, interfaith marriage has proved to be a contentious affair for both social and legal researchers owing to some of the intricate issues it entails. Interfaith couples often experience disapproval not only from their families but society as a whole. A considerable part of society shows contempt, as per the religious views such marriages can endanger the family’s spirituality. Nevertheless, there are some who advocate for Indonesian multiculturalism and the values of respect and social harmony thus viewing interfaith marriages as legitimate. This dispute includes discussions of Qur’anic interpretation and Islamic law as they assert different viewpoints regarding the legitimacy of marriage of Muslims with Ahl al-Kitab. What aggravates the situation along with the ambiguous national legislation is the fatwa that was promulgated by Majelis Ulama Indonesia about interfaith marriages. This paper responds to the identified problems by offering some recommendations for communication, better understanding around the differences as well as the maqasid al-shari’ah objectives of protecting religion and nashab
CHALLENGES AND PROBLEMS IN LABOUR LAW FROM THE PERSPECTIVES OF INDONESIA AND MALAYSIA
Full text linkThis study provides a critical comparative study of the labour laws of Indonesia and Malaysia, two of the most prosperous economies in Southeast Asia, but with different legal systems due to their respective political, socio-economic and colonial legacies. A wide range of topics were discussed, covering almost all major issues related to the laws affecting practise, namely historical development and legal reforms, current challenges related to wage inequality, migrant workers and enforcement of labour protection. A qualitative comparative analysis was conducted based on primary legal documents, including the Indonesian Omnibus Law on Job Creation and the Malaysian Employment Act 1955 as amended, supplemented by secondary sources such as policy papers and academic articles. The findings suggest that decentralisation in Indonesia leads to uneven enforcement across regions, while Malaysia\u27s centralised administration falls short in protecting migrant workers. In both countries, economic growth clashes with labour rights, with Indonesia struggling with a largely informal sector and Malaysia with a very high dependence on migrant workers. The discussion emphasises the fact that while recent legislative reforms have taken place, weak enforcement and problematic dispute resolution reflect the persistent problems. The study concludes by outlining policy implications that support strengthening enforcement mechanisms, formalising the informal sector and adhering to international labour standards to promote good employment practises. The results obtained with such a methodology contribute to the discourse on labour law and provide insights for policy makers, academics and other stakeholders concerned with the dynamics of the labour market in Southeast Asia
DATA BREACHES EXIT STRATEGY: A COMPARATIVE ANALYSIS OF DATA PRIVACY LAWS
Full text linkData has become highly valuable in the era of digitalisation and is the main target of cybercriminals. Cybercriminals steal data by exploiting system vulnerabilities. The rise of catastrophic data breach incidents affects business operations, reputation and legal standing, leading to business disruptions, financial loss and reputation damage. These incidents have raised data security concerns. The frequent incident is partly due to insufficient security measures in place. This article employs doctrinal research focusing on legal principles based on legislation to analyse Malaysia’s legal framework for protecting personal data in Malaysia and a comparison with other jurisdictions, i.e. the European Union General Data Protection Regulation (GDPR), the Singapore Personal Data Protection Act 2012 and the China Personal Information Protection Law (PIPL). The findings show that Malaysia’s data protection laws fall short of the international norm in some areas. This article suggests that Malaysian policymakers may amend the Personal Data Protection Act 2010 to align with international data protection standards to strengthen data security measures in preventive, detective and responsive data breaches. Consequently, this article provides an analysis of data protection laws in Malaysia and compares them with other advanced jurisdictions. It offers valuable insights into the challenges and opportunities involved in safeguarding personal data, the legal framework, and organisational strategies related to data privacy and security
SCIENTIFIC APPROACH AS THE BASIS FOR THE FORMATION OF MAQĀṢID AL-SHARĪ‘AH CONCEPT AND PRINCIPLES: A COMPARATIVE STUDY
Full text linkMaqāṣid al-sharī‘ah is acknowledged as one of essential foundations in determining shariah rulings. However, some contemporary fatwās continue to be issued that disregard maqāṣid al-sharī‘ah, while some groups have also misunderstood it leading to misapplication. This paper will analyze the methodology employed by classical Islamic scholars in establishing the concept and principles of maqāṣid al-sharī‘ah. The analysis will compare the methods of determining maqāṣid al-sharī‘ah by Muslim scholars with current scientific research methods. This study utilizes the qualitative methodology by examining classical and modern scholarly writings. The collected data is analyzed thematically based on an inductive approach. Findings of this study demonstrate that formulating maqāṣid al-sharī‘ah concept and principles involves analyzing textual injunctions. The istiqrā’ inductive reasoning applied by Muslim scholars bears similarities with thematic analysis in modern qualitative research. Hence, maqāṣid al-sharī‘ah represents the implicit objectives unifying diverse shariah rules. It holds greater epistemic certainty compared to individual scriptural proofs, being supported by multiple textual evidences across various domains of rulings. As the mafhūm(implicit meaning) of the Sharī‘ah corpus, maqāṣid guides ijtihād without compromising fundamental sharī‘ah tenets. Proper application of maqāṣid al-sharī‘ah facilitates determining contemporary rulings that fulfill the objectives of sharī‘ah itself. This paper advocates grounding ijtihād and fatwās in maqāṣid al-sharī‘ah through holistic textual analysis. This enables addressing new challenges through appropriate sharī‘ah rulings while avoiding rigid legalism or unfettered rationalism
THE UN ILC’S DRAFT CONCLUSIONS ON THE PEREMPTORY NORMS OF GENERAL INTERNATIONAL LAW: THE TALE OF THE ANNEX
Full text linkThis paper examines the implications of the General Assembly\u27s failure to adopt a resolution on the International Law Commission\u27s Draft Conclusions on Peremptory Norms (“Draft Conclusions”) during its seventy-seventh session. While the non-decision does not affect the legal status of the Draft Conclusions, it raises questions about its reception and the underlying reasons for the lack of resolution adoption. The inclusion of an Annex with a non-exhaustive list, particularly addressing the right to self-determination, led to opposition from a subset of States. Despite the strong pedigree of the norms in the Annex, dissenting voices, primarily questioning the status of certain norms, played a pivotal role in the non-decision. This paper contends that the dissenters\u27 success in preventing the adoption of a resolution could prompt the International Law Commission to exercise greater caution in its future work. The Commission may become more inclined to avoid addressing sensitive issues, potentially leading to a tendency to seek the lowest common denominator in its outputs. The analysis delves into the potential impact on the Commission\u27s approach and the broader implications for the development and acceptance of peremptory norms of general international law.
LEGAL REQUIREMENTS OF HOME-BASED CHILDCARE CENTRES IN MALAYSIA; ARE CHILDCARE PROVIDERS AWARE?
Full text linkHome-based childcare (HBCC) services are among the childcare services available in Malaysia, as ensconsced in the Child Care Centre Act 1984. In Malaysia, HBCC providers are only allowed to care for a minimum of four and a maximum of 10 children. However, this definition does not include small home-based childcare services or childminders who care for less than four children. Employing the qualitative method of content analysis, this study discusses the laws and regulations governing HBCC in Malaysia, particularly the legal requirements that need to be fulfilled. This is further supported by interviews conducted with childcare providers who look after children at their home to examine their level of understanding of the legal requirements under Malaysian childcare laws and regulations. Findings indicate, among others, that the HBCC operators are unaware of the need to register with the Social Welfare Department. The adherence to the legal requirements for this HBCC should not be taken lightly, as it is crucial to ensure the safety and well-being of children. Consequently, greater efforts are required to ensure the children\u27s health and safety because the current procedures rely solely on the experience and expertise of the childcare providers. This paper contributes to the extent of knowledge of HBCC in Malaysia especially towards policy makers, child care operators and parents by exploring the experiences of HBCC childcare providers. It is proposed that continuous improvements need to be made to the laws and regulations on HBCC in ensuring high quality services of HBCC
AUT DEDERE AS ERGA OMNES TO SUPPRESS CIVIL AVIATION CRIMES UNDER THE INTERNATIONAL LAW: THE ISLAMIC LAW PERSPECTIVE
Full text linkAut dedere (extradition) is an erga omnes obligation towards the international community aimed at closing the gate of safe haven so that the international criminal will face the consequence of his heinous act directed at the international community from the requesting state. The term aut dedere has not been used in conventions or treaties until the eighteenth century. This paper examines the necessity of integrating the doctrine of \u27aut dedere\u27 (extradition) into International Aviation Conventions to combat civil aviation offenses and seeks to explore its treatment under Islamic law, and the potential for punishment for refusal to extradite offenders. Through doctrinal legal research, the paper reveals that while aut dedere is obligatory under conventional law, it lacks enforceability without associated punishments. Conversely, extradition under Islamic law is deemed mandatory due to its universal nature. The paper underscores the relevance of Islamic jurisprudence in modern international legal frameworks and recommends amendments to International Civil Aviation Organization conventions to enforce extradition provisions and recognize civil aviation crimes as international offences, consistent with Islamic legal principles
PERMANENT MAKEUP: A TATTOO IMITATION PROCEDURE FROM THE SHARIAH PERSPECTIVE
Full text linkThe growing interest in permanent makeup, which provides a lasting and perfect appearance, has sparked concerns regarding its safety and compliance with Islamic beliefs. This study aims to elucidate the Shariah ruling on permanent makeup by employing a document analysis method to examine all relevant Shariah information, including Quranic verses, hadith, Islamic jurisprudence and fatwas. Consequently, this study examines the medical aspects of the procedure to gain a comprehensive understanding of the issue.
This study employed document analysis to investigate permanent makeup procedures from both the medical and Shariah perspectives. The analysis of the Shariah perspective on tattoos and cosmetic procedures included a review of medical journals and websites addressing the practice, focusing on techniques, safety, and concerns associated with permanent makeup procedures. Additionally, fatwas concerning permanent makeup from Islamic scholars available on fatwa websites across the globe were analysed. This study concludes that Muslims should refrain from undergoing permanent makeup procedures because they involve skin penetration and the use of permanent pigments, making them comparable to tattoos, which are prohibited in Islam. This study on halal in cosmetic services adds to the existing body of knowledge in the halal industry, and pave the way for further research to be conducted on similar topics in the future
TO BE OR NOT TO BE: ARE CRYOPRESERVED EMBRYOS PROTECTED UNDER THE SHARIAH?
Full text linkOne of the main aims of the Sharīʿah (maqāṣid al-sharīʿah) is the protection of human life (hifz al-nafs). Advances in medical science have similar aims and have created technology to assist infertile couples to overcome their infertility. One of the technologies developed to further simplify this process is the ability to freeze excess embryos to be stored for long periods of time through cryopreservation. This technology allows infertile couples to use these embryos when they opt for treatment not only once but multiple times. Despite its benefits, the cryopreservation of embryos could bring about several legal issues. This study focuses on the legal status of cryopreserved embryos in two situations. The first is in the event of divorce between the parties and the second is in the event of death of one or both of the parties. The main concern in these two situations is does the couple have full authority to decide what happens to their embryos, even to the extent of allowing them to perish? Are cryopreserved embryos protected under the Sharīʿah? This paper analyzes the sanctity of human embryos within the Sharīʿah and legal frameworks in selected Muslim countries, with particular emphasis on issues of right to life and their potential legal repercussions on human society. In applying a comparative approach, this paper aims to shed light on the ethico-legal complexities surrounding cryopreserved human embryos under the Sharīʿah
ELECTRONIC COMMERCE CONTRACTS UNDER JORDANIAN LAW: A LEGAL PERSPECTIVE
Full text linkThis study explores the legal framework governing electronic commerce contracts within the context of Jordanian Law. It examines the concept, legal nature, and distinctive characteristics of electronic contracts which are essential for determining the legal validity of commercial transactions and contracts in the realm of e-commerce. This study also addresses the disparity between the consumer and the contractor in the performance of electronic contracts, focusing on how the contractors can protect and ensure that both parties uphold their contractual obligations. It further examines potential remedies for this legislative deficiency. There are legal deficiencies in certain aspects of regulating and ensuring the execution of contracts related to electronic commerce. This imbalance must be addressed through the statement of rules of evidence in accordance with the nature of electronic business contracts. The study was carried out in legal terms on the basis of Jordanian laws on this subject, in particular the Jordanian Electronic Transactions Law. The research problem centers on the legal provisions governing electronic contracts under Jordanian legislation and mechanisms for proving the existence of such contracts. This study adopts a descriptive and analytical approach, culminating in several key findings. Among the most significant is the recognition that electronic contracts can be formed without the physical presence of the parties, relying on telecommunication techniques, electronic writing, and digital signatures. This concludes with several recommendations, most notably the necessity for stronger legal protections in online contracting to safeguard against fraud by fictitious companies. Additionally, it highlights the need for a dedicated legal system to address disputes that arise from electronic contracts