International Islamic University Malaysia (IIUM) Law Journal
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“THE COMMERCIAL LAW OF MALAYSIA” - REVISITED SECTION 5(2) OF THE CIVIL LAW ACT 1956; CONSTITUTIONALITY, THE EU AND ISLAMISATION
Get PDFSec. 5(2) of the Civil Law Act 1956 with its predecessors, providing for the application of English commercial law of Malaysia, have existed unaltered for more than 100 years even with revision. There have been important political and economic developments during this period: Independence; the Malaysian Constitution; UK’s entry into the EU bringing with it the question of the constitutionality of applying English legislation and EU commercial legislation in independent Malaysia; and the attempt to found Malaysian civil law on Islamic values and ethics. Singapore has had to make drastic changes to its Civil Law Act, which it finally repealed and introduced a new legislation. The article considers the provision in light of these developments avoiding the well-known problems of interpretation
THE IMPACT OF THE SHAFI‘I SCHOOL IN THE IMPLEMENTATION OF LAWS DURING THE REIGN OF SULTAN ZAINAL ABIDIN III IN TERENGGANU, MALAYSIA
Get PDFSultan Zainal Abidin III was a Sultan who ruled over Terengganu in the early 20th century. He had established an Islamic government system that led to his reign being the most glorious in the recorded history of the Malay Peninsula. This article’s main objective is to identify the application of the Shafi‘i code in various aspects of law, especially in the Rules of Court, during his reign. The research found that the laws applied during his rule had many similarities with the Shafi‘i school of thought. The implementation of Rules of Court is seen to have been influenced by the ideas of major scholars of the Shafi‘i school such as al-Mawardi, al-Ansari, al-Sharbini and al-Ghazali. This shows that the implementation of laws in Terengganu had a strong basis and had organized procedures, indicative of a judicial system operating smoothly and fairly
A FRAMEWORK OF ISLAMIC ECONOMICS WITH REFERENCE TO ISLAMIC TAXATION AND ALLOWABLE EXPENDITURES
Get PDFThe concept ofIslamic Economics underscores the view that Islam, as a religion dictates atotal way of life. The system of taxation in Islam, which is a prominent partof its economics is said to be divinely designed to arrest poverty in theMuslim community. Zakaat has often been cited as a good example of this systemof taxation. It is generally accepted as an act ordained by God to ensure fairre-distribution of economic resources among the followers of Islam. This paperexamines Islamic economics, and in doing so, it evaluates the meaning of Zakaatwith a view to throwing more light on its uniqueness as an Islamic form oftaxation. It also highlights allowable expenditures for tax purposes that areavailable to business entities, subject to levy of business Zakaat. It comparessuch tax deductions with conventional ones operating in non-Islamic settings,specifically in common law jurisdictions. The article concludes that despiteambiguity surrounding the Islamic taxation especially on issues of tax base,treatment, procedures, interpretation of law, and several others, Islamic taxpolicies are meant to foster plans on development in their entirety and toensure social security with the objective of alleviating poverty in the Muslimcommunity
IMPLEMENTATION OF ISLAMIC CRIMINAL LAW IN INDONESIA: TAʿZĪR PUNISHMENT AS A SOLUTION?
Get PDFThis article deals with the recent development of Islamic criminal law in Indonesia, particularly taʿzīr crime. The application of taʿzīr crime accommodates many different groups because taʿzīr is part of Islamic criminal law (supported by Sharīʿah proponents), and the modified nature of taʿzīr punishment is potentially acceptable to the Indonesian people. However, there is still a lot of criticism concerning its application and in practice, there is a sort of compromise and moderation, in a form of “inconsistent application of Islamic criminal law” or “incomprehensive implementation of Islamic criminal law.” The punishment should be adapted according to the people’s tolerance and acceptance. People may tolerate imprisonment, fine, community service order, or even whipping but not stoning. It is submitted that a kind of “mediation” or middle way adopted in implementing Islamic criminal law is by moderation or modification of its punishment. Since neither the Qur’ān nor the Ḥadīth is determinative of taʿzīr punishment, the function of applying the appropriate punishmment can be left to the discretion of a judge or a ruler, thus minimising any rejection or criticism. However, from fiqh or Islamic jurisprudence, the question whether that kind of approach (to moderate the punishment) can be accepted still needs to be answered
SHARĪʿAH ISSUES IN THE OPERATION OF RETAKĀFUL AND REINSURANCE: A PRELIMINARY EXPLORATION FROM SHARĪʿAH PERSPECTIVE*
No full textThis article attempts at exploring various Sharīʿah issues related to the practice of takāful, retakāful, insurance and reinsurance and interaction between them in the practice of retakāful. It explores the practice of retakāful and its importance in modern takāful. The paper discusses the ruling disallowing takāful companies to cede part of their exposure to reinsurance companies on the premise of ḥājah and necessity. It also discusses the permissibility of allowing retakāful companies to accept ceding from conventional insurance. Various opinions, fatwa and rulings and other relevant issues have been analysed. It is found that these practices could be accepted subject to certain conditions. The paper argues that since they are allowed based on hājah and ḍarūrah, a revision should be conducted from time to time to ensure that the practice is really in compliance with this exceptional ruling
MUSLIM WIFE’S RIGHTS TO MAINTENANCE: HUSBAND’S DUTY TO MAINTAIN A WORKING WIFE IN ISLAMIC LAW AND THE LAW IN MALAYSIA
Get PDFIslamic law imposes a duty on the husband to maintain his wife. This duty arises as soon as the marriage contract is completed. The duty to maintain her continues until the contract of marriage ends either through death or separation. This paper seeks to examine the provisions of Islamic law on the husband’s duty to maintain a working wife. The examination extends to the adequacy of provisions of the law in Malaysia governing maintenance of a Muslim wife. The paper will further analyze the law on the extended duty of the husband to maintain the wife, even though the wife is working and especially earning a good salary of her own.
THE APPLICABILITY OF THE UṢÛL AL-FIQH PRINCIPLE “ISTIṢHŪB” TO THE PRESUMPTION OF DEATH OF A MISSING PERSON IN ISLAMIC LAW OF SUCCESSION AND MALAYSIAN LAW
Get PDFThe rights of inheritance do not arise until and unless the death of the praepositus and the survival of legal heirs are legally established. These two conditions may be easy to ascertain, but are in fact problematic when dealing with the case of uncertainty of death such as a missing person, because the death is not known. The ascertainment of death and the survival of legal heirs in a missing person case is extremely important because it determines whether any rights of inheritance exist or not. This article seeks to examine the principle of Uṣûl al-Fiqh “Istiṣḥūb”and the approaches undertaken by Muslim scholars to ascertain the related rights of succession involving missing persons. The article analyzes the relevant legal aspects of the applicable laws in Malaysia pertaining to the succession involving a missing person either as a praepositus or a legal heir. It also examines the jurisdictional conflict between the civil court and the Syariah court in Malaysia pertaining to the presumption of missing person’s death in relation to Islamic law of succession
ACCEPTANCE (QABÛL) AND TAKING POSSESSION (QABḌ) OF HIBAH UNDER ISLAMIC LAW AND THE DECISION OF THE SYARIAH COURTS IN MALAYSIA
Get PDFOne of the important components in the creation of contract in Islamic law, apart from the contracting parties (ʿūqidūn) and subject matter of contract (maḥal al-ʿaqd), is formation (ṣîghah). It consists of two essential elements i.e. offer (îjūb) and acceptance (qabûl). The absence of formation will render the contract invalid and imperfect. Nevertheless, in the case of hibah as it is a kind of contract of charity (tabarruʿ), the issue arises as to whether the element of acceptance is required in order to constitute a valid hibah. Added to this is the issue of whether hibah is completed and ownership of property transferred to the recipient as is the case with other types of contract when all of the above three components of contract and their requirements are fulfilled. This study examines issues relating to these two important matters of hibah, since disputes among parties in the Syariah Courts of Malaysia mostly involve these. The examination focuses on the positions of Muslim jurists of the four well-known schools of law, i.e. Shūfiʿî, Ḥanafî, Mūlikî and Ḥanbalî, on the issues. In addition, as the law of hibah for Muslims in Malaysia is mostly uncodified, the study also examines the law that has been applied by various Syariah Courts in Malaysia regarding these issues, especially whether their decisions are solely based on the law according to the school of Shūfiʿî. This is in order to find out an acceptable set of rules that could govern the creation of a valid and perfect hibah
INDONESIA’S RESPONSE TO ILO 185 CONVENTION AN ANALYSIS
Get PDFTo protect its labour who work overseas Indonesia has initiated cooperation with some Middle Eastern countries and some organizations such as United Nations High Commission on Refugees (UNHCR) and International Organization of Migration (IOM). ILO Convention 185/2003 has been put in place as a result of the American pressure on the International Labour Organisation (ILO). While the benefits of the convention are difficult to deny there are also concerns about its potential abuse and other problems arising from its implementation.
ISLAMIC CRIMINAL LAW IN THE MALAYSIAN FEDERAL STRUCTURE: A CONSTITUTIONAL PERSPECTIVE
Get PDFStates in a federal type of government are allowed a certain amount of autonomy. Under the Malaysian federal structure Islamic criminal law has been put under state jurisdiction. Despite this clear position various questions pertaining to the state jurisdiction on Islamic criminal have recently been raised. This article seeks to discuss those issues in the light of the relevant constitutional provisions and judicial decisions