International Islamic University Malaysia (IIUM) Law Journal
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WOMEN’S RIGHTS TO SUCCESSION IN UNREGISTERED MARRIAGES: A REFERENCE TO THE INSTRUMENT OF WAṢIYYAH
Get PDFIt is an essential requirement for a marriage to be registered according to the procedures as provided by the law. Non-registration of a marriage leads to the non-availability of a marriage certificate, being the main proof of the existence of the marital relationship. This situation results in various legal complications in claiming the rights, including a right to property under the law of succession which arises upon the death of the spouse. Such a right, even though guaranteed by the Sharīʿah, is not recognized by Malaysian law. This article seeks to examine women’s rights to succession in cases of unregistered marriage with special reference to the execution of a waṣiyyah as a useful instrument to protect the rights of the unregistered wives against husbands’ estates
JUVENILE DELINQUENCY IN MALAYSIA: LEGAL FRAMEWORK AND PROSPECTS FOR REFORMS
Get PDFIt is undeniable that offences committed by young offenders in Malaysia are increasing. Progress in technology and development in IT has exposed our youngsters to various violent related programmes. The type of offences committed differs from the early days. Thus, it is timely to examine the existing legal framework and to suggest reforms to the system so that the aspects relating to punishment of young offenders can be reviewed. This is necessary to ensure that the punishment is deterrent and rehabilitative whilst at the same time, it would safeguard the interests and welfare of young offenders. This paper examines the application of the law pertaining to the criminal liability of young offenders and their positions in both the civil and sharīʿah systems.
THE EVIDENTIAL WEIGHT OF THE ELECTRONIC DOCUMENT UNDER JORDANIAN LAW: AN OVERALL COMMENT
Get PDFIt is submitted that electronic commerce has become factual truth as it creates legal relations among persons, whether they are natural or juristic persons. It has become an important part of internal and international trade when merchants negotiate and conclude contracts without regard to their place of residence. The conventional written document which is deemed the most important instrument that performs an evidential role in conventional contracts is disappearing in this cyberspace commerce. This phenomenon has led to the generating of an alternative instrument, which is the electronic document that performs the same evidential role as the conventional document. This article analyses the evidential weight of the electronic document in Jordanian Law and the extent to which this document satisfies the basic requirements to achieve its evidential role. It also discusses the simultaneous extent of compliance of Jordanian Electronic Transaction Law (JETL)1 to the international criteria and the internal conventional criteria
REGULATING THE ROLE OF EXTENDED FAMILIES IN PROVIDING FINANCIAL SUPPORT UNDER MALAYSIAN LAW
Get PDFThis paper examines the adequacy of legal provisions governing the role of extended families in providing financial support under Malaysian law. This is to promote the importance of such function despite the breaking up of extended family relationships due to modernisation and urbanization. The study focuses on the Malay Muslim family where personal law is based on Sharīʿah and the role of extended family is an important component of the system. Besides, other forms of financial provisions are analysed to reflect the extent of familial relationship in response to the current needs
WIFE BATTERING FROM AN ISLAMIC PERSPECTIVE AND MALAYSIAN LEGAL PROVISIONS
Get PDFWife battering is a ground for divorce in the Malaysian Shariah Courts. Some husbands claim that it is their prerogative right to discipline their wives by corporal punishment based on their superficial understanding of the Qur’anic text 4:34 which seems to justify this argument. Some feminist organizations condemn this and allege that if physical assault is lawful in Islam, it leads to a woman’s persecution. This paper examines the issue of wife battering from both Islamic perspective and Malaysian legal provisions. It clarifies the misconception that exists regarding the above issue which is in fact, due to lack of understanding and prejudice against Islamic law
‘NECESSITY’ IN CRIMINAL AND MEDICAL JURISPRUDENCE: A COMPARISON OF COMMON LAW AND ISLAMIC LAW CONCEPTS
Get PDFThe jurisprudential concept of ‘necessity,’ which had its origins in the criminal aspects of both Common Law and Islamic Law, is becoming increasingly important in medical law, especially in relation to organ transplantation, therapeutic cloning, and in vitro fertilisation techniques. Criminal aspects remain closely related to the further concept of ‘duress’ (vitiation of free will) and civil/medical aspects to that of ‘proportionality’ (that the deviation from a norm must be related to the benefit obtained). This paper attempts to examine attitudes of Common Law and Islamic Law to these issues, after some preliminary remarks as to the difficulties and dangers of generalisation. However it may be confidently affirmed that the concepts of necessity and proportionality are well embedded in both systems. Notably also, in both systems there is an abhorrence of commercial transactions involving body parts. There are divergences however - Common Law, broadly, allows any sort of transplantation, for example for cosmetic reasons, whereas as Islam regards this as essential only for the saving of life. In respect of therapeutic cloning there appears to be little divergence of views. In respect of in vitro fertilization, in all Common Law jurisdictions non-spousal sperm donors, anonymous or otherwise, are freely available, and may indeed be paid, whereas in Islam the spousal father must also be the biological father. It is a novelty of the modern world, however, that in almost all countries, even those with a majority Muslim population (like Malaysia) secular law allows freedom of choice so that involvement in these modern medical techniques devolves on personal morality
THE PROPERTISATION OF TRADITIONAL KNOWLEDGE: SEEKING A BASIS IN THE SHARIʿAH
Get PDFThis paper seeks to examine the implications of the propertisation of traditional knowledge from the Islamic law point of view. It proceeds on the premise that absence of direct Islamic legal ruling on the subject does not foreclose the chances of evaluating the modern protection policies from the SharÊÑah context. It is argued that certain SharÊÑah principles can be suitably adapted to justify the protection of traditional knowledge and address the needs of its holders. It finds, among others, that the nature of traditional knowledge as oral knowledge transmitted from one generation to another simply illustrates the original perception of knowledge in Islam and is thus qualified to be regarded as such. Further, while all knowledge belongs to Allah, Islam does not preclude the status of man as developer of new utilities for knowledge use. Therefore, holders of traditional knowledge deserve to be accorded recognition and primacy for their contributions to the conservation and sustainable use of the global biodiversity. The paper concludes that there is evidence to support the recognition of traditional knowledge, being a variant of manfaÑah as a form of al-mÉl (property) worthy of protection
THE THEORY AND PRACTICE OF ṢULḤ (MEDIATION) IN THE MALAYSIAN SHARIAH COURTS
Get PDFThis paper attempts to discuss the position of Ṣulḥ as a mediation tool to resolve cases brought up in the Shariah Court. The first part of the paper is to explain the importance of Ṣulḥ in the institution of justice in Islamic law. Some relevant authorities from the sources of Islamic law will be highlighted including the practice of the companions. The second part of the paper will focus on the status of Ṣulḥ in the Shariah Court in Malaysia in terms of history, ethics of the Ṣulḥ officer and the procedure of how Ṣulḥ takes place in the Shariah Court. The last part of the paper will focus on the Ṣulḥ officers including female officers and compare their status with male Ṣulḥ officers, nature of cases (e.g divorce, taʿlīq, ḥaḍānah) handled by the Ṣulḥ officers and their success rate. The paper will conclude by a discussion of the possibility of the Ṣulḥ officers occupying the position of a judge in the Shariah Court. The last point to be discussed is the balance in terms of number of cases resolved between them
ANALYSIS OF THE CAPITULATORY REGIME IN EGYPT IN THE SIXTEENTH CENTURY
Get PDFThis essay analyses the legal regime of Capitulations in Egypt at the apogee of European abuse of the privilege in the Nineteenth Century. Capitulations were trade oriented prerogatives granted to the European merchants by the Sultan of the Ottoman Empire during the Fifteenth and Sixteenth Century. With the weakening of the Ottoman Empire, the privileges were gradually extended to the point that they awarded foreigners substantial immunity from local jurisdiction and legislation. Once Egypt acquired a greater self-governing status with the successful campaigns of Mohammed Ali, the Capitulatory texts were further enlarged by a substantial body of customary law. Custom operated to exempt Western citizens from compliance with local legislation and immunize them from local jurisdiction. The custom acquired an even more aggressive stance when foreign residents were permitted to sue local defendants and request the application of the foreign resident’s law. Essentially, Consular tribunals, by administering an inequitable consular justice often in favour of the foreign party eviscerated the local judicial system of any authority. The practice only subsided with the institution of Mixed Courts of Jurisdiction in 1876 and the Montreaux Convention of 1936
PRINCIPLE OF AUTONOMY IN LETTER OF CREDIT: MALAYSIAN PRACTICE
Get PDFThe term letter of credit (LC) is not uncommon in international trade as it is the most frequently used method of payment by seller and buyer in their sales contract. LC serves its significant role by facilitating payment between buyer and seller from different countries, who are always prejudiced towards each other on the issue of payment, especially when the deal involves a huge amount of money. By using LC, the seller and buyer will be represented by their own bankers whose function, among others is to issue an LC for the buyer and pay on presentation of seller’s documents which strictly comply to LC requirements. It is well-known that LC is governed by the principle of autonomy or also referred to as the principle of independence1 which indicates LC, being a contract of payment is totally separate from the underlying sales contract. Banks are concerned with documents only and not with the goods. LC transaction can be governed by the Uniform Custom and Practice for Documentary Credit, known as the UCP through express incorporation which provides the rules relating to LC matters and is adopted in almost all LC transactions. This paper discusses the nature, background and significance of principle of autonomy in LC transaction. In elaborating the provisions on the principle of autonomy in the UCP 600, comparisons between relevant articles in the UCP 500 are highlighted. The discussion also focuses on relevant case law and on the application of the autonomy principle in conventional and Islamic LC. The paper concludes with the finding that Malaysian bankers fully subscribe to the principle of autonomy as outlined by the UCP 600