International Islamic University Malaysia (IIUM) Law Journal
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The Potential of Waqf for Maintenance and Management of Stratified Properties in Malaysia
Full text linkThis article explores the possibility of implementing the concept of waqf within the financial management of a strata scheme for the purpose of covering the costs to maintain and manage common properties. High prices of land and the lack of strategic locations for housing has influenced developers to opt for stratified development. The challenge, most of the time, pertains to the maintenance of common areas, which requires substantial funds and professionalism, as well as skills in developing social and human relationships, despite the continual increase in the costs of management. Using doctrinal analysis of primary and secondary data, as well as comparative analysis with strata regulations in Australia, the study concludes that cash waqf can play a role as a potential vehicle to raise funds to maintain and manage common properties in strata schemes. The concept of waqf, where a certain category of properties is released from the ownership of man permanently while its benefits are dedicated to be used for the betterment of the public (ummah), is now regarded as a catalyst for the third sector economy. While religious reward may motivate Muslim owners or tenants to contribute to the waqf fund, other benefits offered such as financial security, sustainability, accountability and transparency would invite contribution and build trust from both, Muslims and non-Muslims. With adequate awareness, initiatives, and effective marketing of waqf products, the waqf concept would be able to provide a sustainable source of funds to cater to short term and long term maintenance plans for strata schemes
Ahmad Ibrahim Memorial Lecture; Humanitarian Conflicts and Crises: where can ADR play any role? Ahmad Ibrahim Memorial Lecture
No full textI am particularly delighted to be here this afternoon despite the fact that this is the snoozing period. looking at how well prepared you are, and everyone has a smile, I know you are here to share your concerns with what occurs in several parts of the world ...for some time now and continuing today. As I speak here, I received several alerts that there are troubles in Gaza, in Dafur, in Honduras and Urumqi just a few moments ago
Ahmad Ibrahim Memorial Lecture; Intensity of Judicial Review: The Way Forward
No full textIt is a fundamental requirement of a democratic state that all forms of state action must be supportable in law - either a statute or the common law. Illegal state action is incompatible with a democratic society. This proposition lies at the heart of the rule of law
International Legal Personality of Prophet Muḥammad (pbuh)
Full text linkAn international legal person is a subject of international law who enjoys rights, duties or powers in international law and the capacity to act on the international plane. Under modern international law, States are international persons, whereas private individuals are not. This article discusses whether Prophet Muḥammad (pbuh) of the religion of Islam was an international legal person. Evidence shows that his correspondences with other States and nations were in his name “Muḥammad ibn ‘Abdullāh” or “Muḥammad the Messenger of Allah,” and not as the head of the City-State of Medina. Was he recognised as such by the international community at that time? This work finds that Prophet Muḥammad (pbuh) was accepted by the international community during his time as an international legal person. His personality was due to his unique position as a prophet
PROTECTING ASYLUM-SEEKERS PRIOR TO DETERMINATION OF REFUGEE STATUS: REINTERPRETING THE REFUGEE CONVENTION AND ASSESSING CONTEMPORARY STATE PRACTICE ON NON-REFOULEMENT
Full text linkThe present decade is confronted with unprecedented refugee crises, dwarfing all similar refugee crises ever witnessed by mankind before. The plight of asylum-seekers, particularly prior to the determination of their refugee status by the host country, is of great concern to the UNHCR and the international community, as this is the time when they are most vulnerable. The sad situation of these asylum-seekers, their sufferings on small boats being packed like sardines on angry seas, and their pain in the hands of cruel human traffickers, beg the crucial question of whether they are protected in any way by international refugee law or left unprotected. With a view to answering this question, the present study applies the legal doctrinal method and attempts a holistic interpretation of articles 1A(2), 31(1) and 33 of the 1951 Refugee Convention. The study finds that the term ‘refugee’ in these articles is in effect referring to ‘asylum-seekers’ who fulfil the constituent elements of a refugee under the Convention and that these asylum-seekers cum refugees are protected by the Convention even before the regularisation of their refugee status. The key protection stems from the principle of non-refoulement. State practice nevertheless is not encouraging and potential States of refuge are very weak in honouring this principle, which is a corner stone of international refugee law. The study concludes with suggestions for resolving this core issue
ADMINISTRATION OF A MUSLIM’S ESTATE UNDER SECTION 17 OF THE PUBLIC TRUST CORPORATION ACT 1995 WITH SPECIAL REFERENCE TO TRANSFER OF VEHICLES
No full textAs one of the administrative bodies, Amanah Raya Berhad (ARB) possesses jurisdiction in administering the deceased’s movable estate through the issuance of letters of declaration and direction respectively. Applying for such document requires the applicant to attach the fara’id certificate as part of the application. The problem, however, is the superfluity of the fara’id certificate in estate cases involving the transfer of ownership of the deceased’s vehicle. This is due to the rule set by the Road Transport Department (RTD) which allows for only a single name to be registered as the new owner, and thus renders the fara’id certificate inoperable. Since the ARB still requires the fara’id certificate in cases involving the administration of vehicles, this requirement is burdensome to the beneficiaries as they have to incur additional costs, as well as spend time and effort to obtain the certificate. This article addresses the problem in relation to estate administration by ARB involving vehicles under Section 17 of the Public Trust Corporation Act 1995 and analyses the implication of such rule towards estate administration. It is based primarily on the analysis of written sources, namely, textbooks, statutes, by laws and journals. The findings from this article show that there is a need to improve the policy of the ARB and the RTD in providing a more efficient means to the public in the administration of the estate of a Muslims
Same-Sex Marriage: Exploring the Implications of Obergefell v Hodges on the Philippines’ Muslim Law of Marriage and the 1987 Constitution
Full text linkIn view of the recent development brought about by the decision of the U.S. Supreme Court in Obergefell v. Hodges, jurisdictions that retain the traditional definition of marriage have sufficient reasons to revisit the concept of marriage under their own laws. This article is an academic effort to explore whether the traditional or historic definition of marriage adopted in the Philippines, as articulated in its Constitution and other pertinent laws like the Code of Muslim Personal Laws of the Philippines can withstand the new norm that Obergefell established in the legal system or constitutionalism of the United States. It attempts to project how the issue of same-sex marriage would be treated and decided in the Philippine context had it been an issue for which the Philippine legal system or constitutionalism is made to respond. This article emphasizes the incompatibility of the Obergefell decision with the Islamic definition of marriage and finds that the same decision is not entirely square with how the issue of same-sex marriage will be dealt with in Philippine constitutionalism
LEGAL CHALLENGES CONCERNING SOME BENEFICIARIES OF ESTATES GOVERNED BY ISLAMIC LAW IN NIGERIA
Full text linkUnder Islamic law, succession is divided into inheritance (mirath) and wills (wasiyyah) with detailed rules on how the estate of a deceased Muslim should be distributed. Islamic law of succession of the Maliki school is applicable in Nigeria as part of the personal law of Muslims. The application of Islamic legal norms in the country is generally limited by the parameters set by the state. Islamic law and its administration face many challenges from the absence of a legal framework for a systematic administration of estates governed by Islamic law. Other challenges come from the cultures and social practices of the people and from international human rights law and the bill of rights in the Nigerian constitution that vary from some provisions of Islamic succession law. This article analyses the effects of the above on the following classes of beneficiaries: non-Muslims, female heirs, illegitimate children, adopted children, heirs outside the jurisdiction of the court, orphaned grandchildren, dissenting heirs whose concurrence is required, successors to deceased heirs, and the Bait ul-Mal (‘Public Treasury’). The article found that in the face of these challenges, Nigeria remains largely faithful to the Maliki School. The article suggests areas where more compliance with Islamic law is needed
ACKNOWLEDGING LAND RIGHTS OF THE ORANG ASLI: A HISTORICAL PERSPECTIVE OF LAWS IN PENINSULAR MALAYSIA
Full text linkThe perspective that the Orang Asli communities do not have legal rights to their customary land remains despite common law recognition by the courts in a series of cases since two decades ago. To the contrary, this article argues that such a perspective has no basis under the law. By using a historical research approach, it is shown that it has never been the case under the law, policy and practices that the customary land of the Orang Asli was denied their entitlement. In practice, the law and official policy and their development in history observe and acknowledge the existing rights to land and resources, which arose from custom of the local inhabitants including the Orang Asli. The law inherently recognises the Orang Asli as having their own distinct political and social identities. The article provides a historical perspective of law and official practices in the Malay Peninsula in relation to land rights of the Orang Asli and trace their origin to British conduct in North America and the Indian Empire which directly influenced their actions in the Malay states. The reality is that, rather than the denial of the land rights of the Orang Asli under the law, there were other factors that led to the continued loss of their land. Conflicting economic interests and cultural attitudes compounded by a change towards legal positivism that came to prevail both, in international law and national legal systems, hampered the recognition of law relating to the land rights of the Orang Asli, who are a minority group that lacks political power. Following this argument, the development of Malaysian common law, beginning from the case of Adong bin Kuwau v Kerajaan Negeri Johor in 1997 that addressed the concerns of the Orang Asli, as well as the natives in East Malaysia, is not novel; it is merely the application of a long standing legal principle in the jurisdiction
The Enforcement of Multi-Tiered Dispute Resolution Clauses: Contemporary Judicial Opinion
Full text linkMulti-tier dispute resolution clauses have come to be recognised as a commonly accepted method of dispute resolution clauses in commercial contracts - they often find place in construction contracts. The article discusses the conceptual nature of the multi-tiered clauses and explains the benefits of these clauses, as well as a few concerns related thereto. The article also refers to the UNCITRAL Model Law on Commercial Conciliation on the enforceability of the ADR tiers in the multi-tier dispute resolution clause, and the statutory regime governing enforceability of the multi-tier clauses in a few jurisdictions. It further discusses the implications of non-compliance of each of these tiers, especially with reference to the judicial opinion, in common law and civil law systems, with regard to the enforceability of these tiers – importantly, it addresses the question if and when these clauses are to be seen as condition precedent to an arbitration/litigation. The article concludes by setting out the common pitfalls to be avoided and the pointers to be considered when drafting an enforceable multi-tiered dispute resolution clause