International Islamic University Malaysia (IIUM) Law Journal
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APPLICATIONS OF DECREASING PARTNERSHIP (AL-MUSHĀRAKAH AL-MUTANĀQIṢAH) IN ISLAMIC BANKING: SOME RELEVANT SHARIʿAH ASPECTS
Get PDFDecreasing partnership based modes could be adopted with advantages for financing asset procurement as well as projects in a variety of situations. The shari‘ah admissibility of this mode essentially depends on the reality and independent functioning of the various contracts. Diverse capacities the parties undertake through the component contracts should be effectively reflected, especially through fulfilling the duties pertaining to ownership and lease, and accepting the liabilities involved. Gaining legal recognition for the component contracts should be attempted. In decreasing partnership for ventures, the equity structure should not be based on terms favourable to one party alone. Replacing the legally binding promise to purchase and giving the partners a choice in the matter, could be more conducive towards the equity relationship
KNOWLEDGE AND ACCESSIBILITY OF MUSLIM WOMEN TO THE LAW ON POST-DIVORCE FINANCIAL SUPPORT
Get PDFThe main objective of the study was to determine the Muslim women’s knowledge and accessibility to the law on post-divorce financial support particularly that which relates to ʿiddah maintenance, mutʿah, arrears of maintenance, and child maintenance. The data was collected using self-administered questionnaire. The sample was 201 divorced women recruited from the recorded cases for the period 2003-2005 in the Shariah Subordinate Courts of Hulu Langat and Gombak Timur, Selangor. The findings indicate that almost all respondents (99%) have high level of knowledge on the legal rights to post-divorce financial support. However, more than two-thirds of the respondents (70%) had low level of accessibility to the law when claiming for post-divorce financial support. The study suggests that although divorced women might have better access to legal information through reading and socialization, the problems regarding the attitude of the court’s officers and lawyers, the complexity of the court procedures, the uncooperative attitudes and the non-compliance of the ex-husbands to the court-ordered financial support did impede their accessibility to the law
CONSUMER PROTECTION IN THE SUPPLY OF SERVICES: A COMPARATIVE STUDY BETWEEN THE CONSUMER PROTECTION ACT 1999 AND ISLAMIC LAW
Get PDFThe Consumer Protection Act 1999 (CPA) that came into force on 15 November 1999 represents a milestone in consumer protection in Malaysia.1 It has several important provisions, some of which are more beneficial than those found in the law of contract and law of tort since its objective is specifically to protect the interest of consumers. The statute is applicable to both goods and services but the provisions on services are very important because previously the laws regulating the supply of services seem to be left behind compared to those regulating goods. The aim of this paper is to examine the relevant provisions of the CPA and make a comparative study with the protection available under the Islamic law of muʿāmalāt. The central discussions are on section 53, section 54 and Part IX of the CPA since they deal specifically with the supply of services. The liabilities of the service providers are scrutinised as well as consumers’ rights of redres
PALESTINE, INTERNATIONAL LAW AND MUSLIM UNITY
Get PDFThe Palestine issue is a heart breaking politico-legal issue that has remained unresolved for so long. The issue started immediately after the disintegration of the Ottoman Empire and following the occupation of Palestine by Great Britain. Britain disregarded the will of the majority of population, facilitated, directly or indirectly, Jewish settlements and supported foreign- led Zionist movement by making an unjust and illegal promise to them to create a state for Jews in Palestine which it eventually did and in doing so it further complicated the Palestine issue – an issue which the League of Nations was unable to solve due to its lack of commitment and its weak organizational structure. The issue has continued till today and is termed as “the most serious and prolonged unresolved political and human rights issue on the agenda of the United Nations (UN) since its inception.” The inability of the UN to resolve the Palestine issue is not due to the fault of international law but due to the lack of commitment of some of the powerful members of its executive organ, that is the Security Council. These powers disgracefully have shown passivity and apparent indifference about the long and cruel Israeli occupation of Palestine. As this paper explains, the indifference on the part of the UN Security Council has enabled the Zionist state of Israel to pursue with impunity its aggressive wars, its ethnic cleaning strategy, its settlements policy, its blockades of the Palestinian cities and towns and its denial of the Palestinians’ inalienable right of self determination. If the powerful nations of the world failed Palestine and its people, we the Muslims must not follow suit. We must stop our infighting and unite our strength and do everything that is peacefully possible to help Palestinians to find a just solution to their problem and if possible to restore Palestine to its historical status
COLLECTIVE DOMINANCE IN COMPETITION LAW AND POLICY OF THE EUROPEAN UNION: AN ASSESSMENT
Get PDFThe European Commission, supported by the European Courts, developed the framework for competition law and policy in Europe. One of the main purposes of this policy is to build a conceptual and legal foundation to promote market opening and to strengthen community institutions. In this policy framework, ‘collective dominance’ of firms in the European market is the utmost important issue. To deal with this issue, the competition law of the European Union is now relying more on the extensive network of national-level authorities and applying broadly consistent substantive rules. The notion of ‘collective dominance’ in European competition policy is in transition towards policy based on market-center economic considerations as regulations and guidelines increasingly follow an analytic format based on economic perspectives.
JUST AND EQUAL TREATMENT IN POLYGAMOUS MARRIAGE:THE PRACTICE IN THE SHARIAH COURTS IN MALAYSIA
Get PDFIn Islam, a man may marry more than one woman, provided, as mentioned in the Qur’ān, some conditions are observed. The requirement of equal and fair treatment of the women is clearly emphasised, and it has to be based on just and equitable principles as laid down by Islamic Law. Muslim jurists have laid down specific conditions for a man to take more than one wife. The man should have enough financial capacity to look after the needs of the women and they should be treated equally in fulfilling their rights such as maintenance and accommodation. If a man feels that he will not be able to treat the women with equality and justice, he should restrict himself to marrying only one woman. In Malaysia, the Shariah Court can only grant permission for a polygamous marriage if a man has satisfied the court that he has fulfilled the required conditions. Section 23 (4) of the Islamic Family Law Act in Malaysia provides that the husband must have sufficient means to support his wives and dependants, that he would be able to accord equal and fair treatment to them. There are many cases in the Shariah Court where applications to practise polygamy by men were dismissed for fear justice would not be served to the women. This paper is an observation on the practice of the Shariah Court in Malaysia in granting permission to applications for polygamous marriage, and examines briefly to what extent this requirement of equal and fair treatment is adhered to by the courts
LEGAL EDUCATION IN INDIA: PROBLEMS AND CHALLENGES
Get PDFThis article makes some observations about legal education in India by locating it within a wider context of legal education reform that is taking place in Law Schools across the world in the wake of globalizationled and globalization-induced changes in the nature and needs of legal profession. For being both intellectually challenging and professionally relevant, legal education should be more responsible than ever before to the legal needs of the community national as well as international , and the learning needs of students to become professionally competent to play their role in an increasingly transnationalized legal service market. Any effort to restructure and reorient legal education to attain these goals will be an uphill task for any school. This article begins with exploring the implications of globalization for legal education and then turns to nature, aims and objectives of legal education. The article then looks at the possible changes required to be made in the existing curriculum for undergraduate law students in order to make the legal education more relevant and meaningful for its consumers. The focus then shifts to issues concerning methods of teaching, clinical experience and assessment of students. This article then considers issues arising from the proposal of the Bar Council of India to reduce the period of Masters programme and then builds a strong case for strengthening a research tradition in Law Schools. The focus then shifts to measures that are necessary to attract and retain better faculty and also to the regulatory role of the Bar Council of India in the field of legal education. The article concludes with some reflections on the promise of a different vision of legal education
THE STATUS OF INTERNATIONAL LAW IN THE MALAYSIAN MUNICIPAL LEGAL SYSTEM: CREEPING MONISM IN LEGAL DISCOURSE?
Get PDFThis article revisits the status of international law in the Malaysian municipal legal system and considers whether monism is the doctrine or the preferred doctrine in relation to the proper place of international law in Malaysia. This revisit is necessary because of the tendency in some legal writings and legal opinions to take a cavalier approach in using international instruments to dictate the content of municipal law. While observing the ascendancy of international institutions and instruments in determining international and national obligations, it is necessary to take stock of things to maintain a balance between being sovereign and being a member of the global neighbourhood
METHODS OF PROOF AND EVIDENTIARY REQUIREMENTS IN DIVORCE CASES: AN ISLAMIC PERSPECTIVE
Get PDFThe bulk of Shariah Court cases nowadays involve matters pertaining to the dissolution of marriage. The most common ones are ṭalāq, taʿlīq and fasakh. The reason as to why the Shariah Courts are crammed with these cases is not merely due to the increasing number of divorce cases but can also be attributed to the difficulty in proving them. Today, as lifestyles become more complicated, ṭalāq is no longer the same as ṭalāq, previously understood. The husband no longer pronounces it openly or orally. Current technology such as SMS and email has overshadowed the sanctity of ṭalāq. The situation becomes worse when the sender, that is the husband, denies it. To obtain dissolution of marriage via taʿlīq or fasakh, in most cases, has proved to be a nightmare. There are many causes that contribute to it; ranging from the complexity of the subject itself, the provisions of the law and how to apply them, misconception on the methods of proof, and the wrong imposition of burden of proof. Due to all these factors, it is simply concluded by one section of the society as ‘gender discrimination’ and sometimes the blame has been put on the Shariah Court itself. This paper intends to provide some suggestions and solutions to the problems mentioned above. It is hoped that the courts and those involved in legal suits would be ready to accept the wider concept of evidence without confining themselves merely to the requirements of two male witnesses