International Islamic University Malaysia (IIUM) Law Journal
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A Study on the Socio-Economic Roles of Waqf Ahli (Family Waqf) in Promoting Family Security and a Sustainable Family Economy
Full text linkThe challenges associated with financial stability and sustainability of family economy in the future are increasing. The most worrying is the problems facing the survivors after the death of their breadwinners. The majority of Muslims are rarely ready for this possibility and many lacks the knowledge on how to face such a situation. Some wrongly hold to the view that such preparation is not encouraged in Islam, against the principle of faraidh (estate planning) and an act of avoiding taxation and etc. In this article, it is shown that although waqf (Islamic endowment) appears in the form of charity but the outcomes are tremendous, encompassing family future investment and income generating. Employing a doctrinal analysis by looking into the available literatures on waqf, this article discusses how waqf ahli can contribute to family security and ensure a sustainable family economy. It is shown that Islamic endowment (waqf) aims to preserve and protect property for the use of the public; including spending on family. In addition, family waqf saves the heirs' property or business from fragmentation. Most importantly, it ensures sustainable family financial planning within the Shari‘ah framework while adding value to the existing family property or business
Prosecuting Piracy at the High Seas: the Experience of Malaysia
Full text linkThe development of the law on piracy under two major international treaties; the Geneva Convention, 1958 and the United Nations Convention on the Law of the Sea, 1982 has witnessed great acceptance and application of the law with many coastal states have crafted specific anti-piracy law as a manifestation of their commitments to the international treaties. However, up until today, Malaysia has yet to come out with a single and unified statute against piracy despite being a member to both treaties. The law is scattered in a different set of documents and carried out by various agencies that are responsible to each respective law. It is argued that given this is the position in Malaysia, the prosecution of piracy would be a critical problem for the law enforcement. In this paper, we address this concern by looking at both Malaysian legal framework as well as the experience of the country against international piracy, particularly the case of Bunga Laurel. The findings suggest that there are more than twenty Acts that might be used against piracy. As a sovereign state under the international law, Malaysia also has the right to resort to principles of international law for the apprehension and prosecution of high sea pirates. To this effect, the case of Bunga Laurel has really manifested the successful application of Malaysian law by the High Court of Malaya against international piracy. The paper concludes that the absence of a single anti-piracy law is not necessarily an obstacle, but instead an advantage with great choice of law available for the prosecution in this country
International Parental Child Abduction in the Malaysian Legal Context: Addressing Issues and the Way Forward
Full text linkThe number of international parental child abduction cases is gradually increasing and the problem has now become a global phenomenon. The worrying situation is that the problem in question is extremely difficult to resolve due to conflicting substantive and procedural laws in various countries. The 1980 Child Abduction Convention is an attempt to address the problem by means of an automatic return mechanism of the abducted child to his country of habitual residence. However, a Malaysian parent would not have that privilege as Malaysia is not a party to the Convention. The primary focus of the present work is to examine whether Malaysia has adequate legal and procedural framework to address the issue of cross-border parental child abduction. The present work makes a thorough analysis of the dual legal system of Malaysia, namely both the civil law and Islamic law streams when dealing with child custody and parental child abduction and assesses in-coming and out-going international parental child abduction cases decided by the Malaysian courts. The article finds that although in the long run, Malaysia should accede to the Child Abduction Convention, there are legitimate concerns on the part of stakeholders and on the fact that the opinion on the ground is against the accession. The article concludes that in the meantime, section 52 of the Child Act 2001 should be amended to strengthen the legal regime regulating parental child abduction in Malaysia
Fiqh al-Jihād in Modern Warfare: Analyzing Prospects and Challenges with Reference to International Humanitarian Law
No full textIn discussing the compatibility of the Islamic concept of jihād and international law, most researches focus on the jus ad bellum (justifications of war) of fiqh al jihād and less on the jus in bello (lawful conducts of war). This article observes the relation between fiqh al-jihād and modern international humanitarian law, and sets out both the prospects and challenges of such a concept in modern times. It is argued that some challenges are due to the lack of emphasis on the principles of fiqh al-jihād that are shared with modern International Humanitarian Law, or the existence of differing opinions between Islamic scholars. Using a literature research, this article finds that the way to address this is to make a unified code of fiqh al-jihād, involving scholars from all schools of thoughts, to agree on a common set of rules
Whistleblowing: A Western and Shari’ah Perspective
Full text linkThe concept of whistleblowing law in Islam is unique and differs from the West as it derives from the elements of Tawhid and Shari’ah. The concept is essentially dynamic and relevant since it was initially introduced during the Islamic ruling era until the present time. The practice of whistleblowing in Islam maintains the public interest (maslahah ‘ammah) which aims in fulfilling the five objectives of Maqasid Shari’ah. On the other hand, the western whistleblowing law was developed in response to tragedies in assuring good governance and protecting the public interest, in which the ideas of good and bad are determined by social norms and not based on the scriptures. In the present time, notably, the role of whistleblower is significant to response to corruption as a global issue plaguing many nations, which causes substantial destruction to social, economic and political aspect. In this regard, the purpose of this paper is to explore and compare the concept and scope of disclosure of whistleblowing law from Shari’ah perspective and its western counterpart and how its principled conviction, upholding public interest disclosure could deal with the current phenomenon plaguing many nations, corruption. With that, the methodology employed in this paper reflected the descriptive, analytic, and prescriptive approaches by analyzing the existing laws, decided cases and literature pertaining to the conceptual and the legal frameworks of whistleblowing under the Western and Islamic jurisprudences
The South China Sea Arbitration: The Decision and its Implications on the Sovereignty Claims of China and the Philippines
Full text linkThe South China Sea Arbitration which has taken place recently with its final decision published in July 2016 was an action initiated by the Philippines against the People’s Republic of China in an attempt to oppose the latter’s claims of ‘historical rights’ in various maritime features in the South China Sea. The panel was constituted under Annex VII of the United Nations Convention on the Law of the Sea. The Chinese Government opposed the constitution, admissibility and ruling of the entire arbitration. It has since put forward many counter claims to refute the validity of the decision reached. China’s primary concern inevitably lies with the implications of the decision on the ‘Nine-Dash Line’, a historic graphical boundary line that has appeared in the Chinese national atlas as early as 1914. This article will qualitatively dissect the decisions made by the arbitral tribunal from a historical perspective, taking into account diplomatic correspondences and authoritative theories in public international law. Ultimately, this article aims to ascertain the implications of the arbitral rulings on the claims of sovereignty of both countries, which remain the terminal concern of the international community. It will be observed, that the ruling, albeit shrouded in irregularities, has posed irreversible impacts on the situation of the South China Sea saga
CRAFTING ANTI-TERRORISM LAW IN MALAYSIA: STRIKING A DELICATE BALANCE BETWEEN NATIONAL SECURITY AND PERSONAL LIBERTY
Full text linkThe sudden rise of this radical terror group calling themselves the Islamic State in Iraq and the Levant (ISIL) and the brazen show of decapitation of their captives have sent shock waves across the globe. This prompted the United Nation Security Council to adopt Resolution 2178 calling for its members to take preventive counter-terrorism measures to contain the spread of this radical ideology propagated by ISIL. Malaysia in responding to this call, has passed and enacted the Prevention of Terrorism Act, 2015 (POTA) despite receiving much criticism that POTA has eroded fundamental human rights, in particular, the right to one’s liberty. This article examines the challenges faced by the government in balancing between national security and personal liberty when crafting POTA. The article shows that equilibrium is hard to achieve between the two competing rights and thus has become disproportionate by looking at the POTA itself. The article concludes Malaysia’s counter-terrorism strategy prioritises national security over basic human rights, which clearly is abhorrent to the rule of law and that in fact, the threat posed by terrorism could have been exaggerated by the government in their efforts to fight terrorism as there are many other threats to life which call for more attention than the threat of terrorism itself
The Right of Private Defense against Non-Accountable Offenders and in Defense of the Chastity of Women under Islamic Law
Full text linkThe right of self-defense under Islamic law (Shariah) distinguishes between two concepts: private and public defense. In this article, legal and practical manifestations of the contemporary legal issue of private defense in the case of physical assaults made by non-accountable (mukallaf) offenders, such as minors and insane persons are focused. Aside from that, this article also analyses the use of private defense to protect the chastity of a woman. The four conditions to exercise the right of private defense are highlighted. In order to explore the effects of private defense, the significance of keeping the lawful measures and exceeding the right of self-defense are also discussed
CHOICE OF ISLAMIC LAW AS THE GOVERNING LAW IN ISLAMIC FINANCE CONTRACTS: THE UNITED KINGDOM AND NIGERIAN PERSPECTIVES
Full text linkThe globalisation of Islamic finance has brought the adjudication of Islamic finance disputes before non-Muslim courts and arbitral tribunals in Europe, America and elsewhere. Expectedly, the issue of the validity of the selecting Islamic law as the governing law of an Islamic finance contract often arises before these courts and tribunals. The article seeks to address the attitude of the United Kingdom and Nigerian courts to this unique problem. The thesis of the paper is that while the parties’ reasonable expectations in having their Islamic finance contracts governed by the Shari’ah may be met in Nigeria and by extension in other Muslim-majority countries, the contrary is the case in the United Kingdom and Europe where the courts do not generally favour the application of Islamic law. The paper advocates that the doctrine of the proper law of contract should be extended to Islamic finance by upholding Islamic law as the law selected by the parties (on the basis of party autonomy) or alternatively, as the system of law with which an Islamic finance transaction is most closely connected
Whither Policing Cryptocurrency in Malaysia?
Full text linkCryptocurrency, like Bitcoin, is a digital currency in which encryption techniques are used to regulate the generation of units of currency and verify the transfer of funds, operating independently of a central bank. It is an emerging financial technology enabled by innovation, increasingly popular among global Internet users, and more interestingly, it challenges the existing financial and regulatory rules on the currency and payment systems of the world today. On the other side, certain cryptocurrency like Bitcoin, have been actively used as payment tools for illicit transactions. Both the “promising” and "challenging" faces of cryptocurrency trigger causes for concern for policy makers, not only from financial sector, but also legal and technological sectors. The decentralised nature of cryptocurrency creates unique problems for the government to regulate or impose any regulatory requirements. This article argues that, in order for Malaysia to remain at the forefront of financial and digital innovation, it is timely to look at the question on whether to formulate certain policy and regulatory framework on the use of cryptocurrency in Malaysian market. The answer can pave the way for Malaysian digital citizens to potentially grab the opportunities made possible by the cryptocurrency technology. For this purpose, the researchers seek to study the features of cryptocurrency and the experiences from policymakers in other jurisdictions in dealing with the matter