International Islamic University Malaysia (IIUM) Law Journal
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SPECIAL FEATURE No Judge is Parliament
Full text linkSpeech delivered at the Symposium on “Constitutional Oath, Rule of Law, and Supreme Policing Role of the Judiciary”, International Islamic University of Malaysia, 30th March 2018
Guidelines and Legal Ecosystem for the Creation of Islamic Content in Malaysia: Towards Consumer Empowerment
Full text linkThe contents of creative industry must portray the cultural and religious values of the country. As a tool of nation building, creative industry plays a fundamental role in inculcating good values and the avoidance of social illnesses. The objective of this study is to examine the importance and growth of Islamic contents in Malaysian creative industry. By employing qualitative research methods, namely, content analysis and interviews, the study found that there is increase in the demand for Islamic contents. This study intends to highlight some of the concerns raised by both producers and consumers of creative content with the hope of empowering consumers in choosing content that is more suitable to their cultural and religious needs. For the Islamic content industry to flourish, having a supportive legal eco-system is imperative. This study explores the existing guidelines on Islamic content as a well as relevant legislation that governs content creation in Malaysia. The study concludes with some policy recommendations that would assist in harnessing the creation of Islamic content in Malaysia
Viability and Legality of Muslims Offering Products or Services Exclusively for Muslims
Full text linkThe debate on ‘Muslim-Only Laundrette’ in Johor, a state at southern Peninsular Malaysia has sparked outrageous responses from various levels of the society. Given the fact that there is scant literature to address this issue, by adopting the qualitative approach, this article aims to explore the issue, from a business perspective about where Muslim products and services stand in Malaysia and the legal aspects of offering goods and services exclusively from Muslims for Muslims. The right to segmentise customers based on religious grounds is critically analysed. This article discusses the governance of Muslim businesses, the issue of discrimination of goods and services in comparison with the position in the United Kingdom, United States of America and Australia. The possibility of mediation services in response to the national call for social harmony is also explored. This article concludes that detailed guidelines to differentiate discriminatory acts from adherence to religious duties should be given to service providers to avoid interreligious misunderstanding. The article further suggests that one of the possible marketing strategies to avoid discrimination claims could be to take a more moderate stand in marketing services such as ‘clean, friendly services' and the like apart from marketing to the Muslim audience through targeted marketing channels, such as Muslim media, local publications in Muslim majority countries, as well as targeted advertisement campaigns
SPECIAL FEATURE: ‘Scrutinising’ the Duties of a Lawyer to Advise the Purchaser in the Purchase of a Residential Property as Required by Sec 84 of the Legal Profession Act 1976 (Part I)
Full text linkIN MEMORIAM
This piece is written in memory of my son Muhammad Zayd bin Bohorudin (1985-2017), advocate and solicitor, and alumnus of the Ahmad Ibrahim Kulliyyah of Laws (‘AIKOL)’, IIUM. He had served the Attorney-General’s Chambers and Zul Rafique and Partners (Advocates and Solicitors). He endeared himself to classmates, teachers and colleagues; and in his brief life fulfilled all his parents’ wishes for him including being chosen by his schoolteachers as a most avid reader of books in primary school.
This article was conceived by Muhammad Zayd and I, as an object lesson on how Islamic teachings may be incorporated into the Civil law to improve its moral contents. To reduce the obsession with self; the Civil law which is made without taking moral teachings into account, particularly in modern commercial transactions. May all those who read this monograph be inspired by the overarching teaching of Islam to seek justice in all civil law formulations including the Housing Ministry-drafted sale and purchase agreement. Muhammad Zayd’s mother Jamilah Begum and I dedicate this monograph as sadaqa jariah. May Allah s.w.t forgive him and reward him with a place in jannah. Amin
Rethinking the Issue of Non-Compensability of Civilian Losses Caused by Security Forces During Non-International Armed Conflicts: The Case of the Marawi Crisis in the Philippines
Full text linkThe terrorism element attendant in an armed conflict does not alter its destructive nature vis-à-vis civilian properties. One example is the Marawi crisis where the Philippine security forces, in response to the threat to national security, territorial integrity, and sovereignty, resorted to aerial bombings and shelling of private buildings, residential houses, and masajid infiltrated by local terrorists, resulting in the destruction of these civilian properties. This article addresses the issue of non-compensability of these civilian property losses. Arguments in favour of and against non-compensability are presented against the backdrop of the concept of reparations in both international law and Philippine domestic law. Based on existing legal realities in Philippine domestic law and jurisprudence, this article finds that reparations in the form of compensation in the context of the Marawi crisis may not be imposed upon the Philippine government as a legal obligation. However, Philippine domestic law and jurisprudence likewise provides for sufficient grounds that reparations in the form of compensation has become the moral obligation of the Philippine government, which it must pursue in the name of justice under a regime of rule of law. Yet ironically, while justice especially during the transition is the ultimate objective of reparations both in its moral and legal contexts, it is only in the latter context that reparations may be pursued judicially. In the final analysis, the non-compensability issue, though a legal one, is a question of choice on the part of the Philippine government
Transplanting the United States' Style of Safe Harbour Provisions on Internet Service Providers Via Multilateral Agreements: Can One Size Fit All?
Full text linkIdeally, internet service providers (ISP) should not be burdened with policing contents that pass through their services as they have no editorial control over them. The United States Digital Millennium Copyright Act 1998 (DMCA) changes the ball game by making it mandatory on ISPs to take down infringing copyright materials if they received a notice and takedown request from a copyright holder. In exchange, the ISPs enjoy safe harbour from any liabilities that might arise from their user's action. Serious efforts are needed to transpose a similar system via negotiations and multilateral treaties and agreements involving a number of countries such as through the Trans-Pacific Partnership (TPP) Agreement. Despite the withdrawal of the United States’ (US) from the TPP, and in view of the global initiatives of harmonization of intellectual property (IP) laws, this article aims to explore the different system of ISPs’ obligations and liabilities in the twelve TPP member countries. It also examines some of the strengths and weaknesses of each system. It concludes with an argument that whilst some form of safe harbour should be created to assist IP right owners in policing their right, the US private notice and takedown system is not without its flaws and hence, other existing systems which are adopted in some of the TPP member countries are equally feasible and serve a common purpose in tackling the issue of copyright infringement vis-à-vis ISP liability. Eventually, there is no compelling reason to impose one single system on all the TPP member countries to police the internet via ISP liability
Compatibility of Islamic Finance and Anti-Money Laundering Laws: A Myth or Reality?
Full text linkMoney Laundering (ML) remains a major threat to the financial flow, as well as affecting the economic stability of any nations. It is equally capable of undermining macroeconomic performance and therefore constitutes a very significant risk to both soundness and stability of any financial institution. Foreign direct investments are therefore adversely affected. Unlike that of the capitalist economy and other conventional banking institutions, the risks which ML poses to Islamic finance attracted little or no critical study. This could give the impression that Islamic finance is not in tune with Anti-Money Laundering Laws (AML) and the regulatory regime or that it is anti-AML. The resultant effect of this is unnecessary hostility to Islamic Financial products, which appears not to be in the interest of global economy. This article, therefore, focuses on the relevance of AML principles to Islamic banking. It is revealed that while no financial institution is immune to laundering, the risk-sharing nature of Islamic finances poses less systemic risk than conventional finance. It is recommended that FATF should facilitate studies of potential ML in Islamic finance to put the issue in the right perspective
Charitable Endowment (Waqf) for the Benefit of Parentless Children in Malaysia: A Preliminary Study
Full text linkChildren are part of the world population and the future of a Nation. Being weak and vulnerable subjects, children deserve full protection from all angles. Adequate protection of children population may guarantee potential and quality leaders for the global world in future. In Malaysia, children form part of the whole Malaysian population. Many children are parentless and having no guardian. These children are in need of protection in all forms. It is obvious that one of the means to protect parentless children is by safeguarding their welfare and benefit through charitable endowment (waqf) provision. This paper seeks primarily to examine charitable endowment (waqf) as a means of safeguarding parentless children's welfare and benefit. Examination focuses on theoretical framework of Islamic law relating to waqf in Malaysia as well as the concept and scope of parentless children. The research is a library research as it is a preliminary stage to provide a sound framework for a further study on instrument of waqf as administered by the States’ Islamic Religious Council for parentless children's benefit in Malaysia. It is believed that the finding of this research will provide further avenue for future research on administration of waqf for the benefit of parentless children in Malaysia
Legal Education in Pakistan: An Overview
Full text linkLegal education in Pakistan was initiated before independence and dates back to the 1800s. The first legal education institution was established under the name of ‘University Law College’ in 1868. Currently, there are more than 150 institutions offering law programs, which include universities and law colleges. These institutions are regulated by the Pakistan Bar Council (PBC) and Higher Education Commission (HEC). Over the past decades, there have been a lot of concerns raised on the quality assurance mechanism with regards to legal education in Pakistan. In line with this, the objectives of the current study is to identify and analyse the roles and responsibilities of the HEC and the PBC as regulators of legal education in the country as well as to identify the strengths and weaknesses within this regulatory system as a result of an overlapping of powers between the two bodies. The article ends with recommendations for improvement
Establishing Legal Rights and Liabilities for Artificial Intelligence
Full text linkThe rapid development of technology has enabled the creation of artificial intelligence. Even the most vocal critics against artificial intelligence and automated systems acknowledge the tremendous benefits offered by this new technology as can be seen in various aspects of human life from trade and commerce, healthcare, safety and security, transportation to social life and beyond. At the same time, the spread of artificial intelligence, automated systems, and robotics poses an incredible risk to our jobs, privacy, safety, health and more. The purpose of this article is to understand the level of impact posed by artificial intelligence and to establish legal rights and liabilities for artificial intelligence. This article also analyzes the viewpoint of Islam on this phenomenon. This article is mostly library-based, benefitting from the extensive literature already available in international journals, books by scholars, and online news. In addition, this article also benefitted from interviews with scholars and experts on cybersecurity and artificial intelligence. The ultimate focus is on the possible recognition of artificial intelligence as a legal entity in its own right, capable of possessing rights and liabilities. The additional focus is on the Islamic perspective on the matter. This article shows that there is an urgent need to establish a uniformed minimum legal rights and liabilities for parties involved, including consumers, manufacturers, and designers, although such rights and liabilities can be tailored to fit the unique scenarios faced by the parties. This article reveals that Islam provides various useful guidelines on this modern and unique matter