International Islamic University Malaysia (IIUM) Law Journal
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VIABILITY OF ISLAMIC BANKING AND FINANCE IN SOUTH AFRICA: A LOOK AT THE LEGAL FRAMEWORK AND GOVERNANCE
Get PDFSouth Africa has a total Muslim population of more than 1 million people representing 2.1% of total population (Islamic Finance News, 27th October 2010), thus creating the demand for Islamic banking and finance. Though the concept of Islamic banking in South Africa can be traced back to several decades, the practical implementation only started in late 1980s with slow initial start up. Presently, while the industry is relatively modest in term to figures, Islamic banking is strategically important for economic development of the country. South African Islamic banking is set to expand at a rapid rate as the new players identify huge opportunity in the country. However, Islamic banks face a series of challenges in the South African market. Increasing framework are the significant challenges for all institutions in the Islamic banking markets. This paper looks at the challenges of the legal framework and governance in implementing Islamic banking and finance in South Africa
ANALYSIS OF POLYGAMY PROVISION UNDER THE ISLAMIC FAMILY LAW (FEDERAL TERRITORIES) ACT 1984 WITH REFERRENCE TO THE QUR’ĀN AND SUNNAH
Get PDFIslam permits polygamy to preserve woman’s dignity and cares for the social moral and economic wellbeing of wives and orphans. Unfortunately, a number polygamous marriage among Muslims in Malaysia is dramatically misleading from both Islamic theories as well as principles. Hence, it has become a very controversial issue among its critics and supporters which resulting in serious criticism on the credibility of Islamic Family Law Act 1984.(ILLA) As a short term measure, a reform the IFLA has been suggested to focus more on specific legal mechanisms in curbing abuse of polygamy. In this paper the author attempts to analyze the synchronization of the IFLA in the light of Qur’an and Sunnah in order to suggest more effective, practical, and acceptable solutions in overcoming the issues and complying with the requirements by ‘following the real teaching in the revelation.
THE NECESSITY FOR A SEXUAL HARASSMENT ACT IN MALAYSIA
Get PDFSexual harassment is a major problem at the workplace. The options of recourse available to a person subjected to sexual harassment are: complaining to the employer, complain to the Labour Department, pursuing criminal proceedings under the Penal Code and commencing action under the law of tort. All of these options are not conducive. In 1999 the Ministry of Human Resources launched the Code of Practice on the Prevention and Eradication of Sexual Harassment in the workplace. The aim is to provide guidelines to employers on the establishment of in-house mechanisms at the company level to prevent and eradicate sexual harassment in the workplace. While the Code has been the first concrete step towards recognising the seriousness of the issue, it is a voluntary code and the Ministry cannot compel companies to adopt it. A proposed Sexual Harassment Bill, which could give effect to the United Nations Convention on the Elimination of All Forms of Discrimination against Women that seeks to eliminate as far as possible discrimination involving sexual harassment in the workplace, was rejected by Parliament. In the absence of a specific statute, sexual harassment at the workplace is often dealt with as dismissal cases under the Industrial Relations Act 1967. This prevents our courts from dealing with sexual harassment issues such as the burden of proof, definition and other matters. This is important as many sexual harassment cases are unreported because of unawareness on the part of the victim as to whether the action actually constituted sexual harassment, and if so, where to complain and what to do. Apart from the legal implications of sexual harassment, sexual harassment could also affect the well-being of the victim
ONLINE CONTRACT AND THE ISSUES OF GHARAR AND UNCERTAINTY
Get PDFThe use of internet as a medium of communication has widened the scope of contract formation. Sale and purchase activities are held online either for performance of contract through the internet itself or to be performed outside the cyber world. Under Islamic Law there are several areas of uncertainty which will have significant impacts on electronic contracting according to Shariah. This is considered as a very fundamental issue especially in the online contract which implies the non physical presence of the parties. In fact if certain fundamental issues in the online contract are not resolved, then the dominant entry of the principles of gharar (uncertainty) arises, and this will make online contracts in Islamic Shariah not feasible. This article seeks to examine what is actually meant by gharar and how it affects the enforceability of the electronic contract in the Shariah. It also discusses the issue of uncertainty under Common Law with a view to ascertain its implications.
EARLY JURISTIC APPROACHES TO THE APPLICATION OF ḤIYAL (LEGAL DEVICES) IN ISLAMIC LAW
Get PDFA precise demarcation separating ḥiyal from normal application of law has remained challenging. The majority of juristic trends are seen to categorise ḥiyal into permissible and impermissible types. Out of four categories of ḥiyal, juristic difference is found only with regard to one, where a permissible avenue is employed for attaining an unlawful end. This highlights that there is a large area of ḥiyal where there is near unanimity on acceptability. Despite the apparent laxity perceived of Ḥanafī jurists with regard to ḥiyal, they have limited the employment of ḥiyal to justifiable purposes only. The debate on ḥiyal could essentially be reduced to the juristic difference on the relevance and significance of intent in contracts, as upheld by Ibn Ḥajar al-ʿAsqalānī
A RE-ASSESSMENT OF AUDITORS’ OFFICE IN ENHANCING ACCOUNTABILITY
Get PDFIn the context of contemporary corporate atmosphere, auditors are pivotal. They act as a financial guardian in the interests of stockholders and stakeholders. Hence, there is a gradual trend of increasing reliance on auditors and their report. Most importantly, the report is lodged at the Companies Commission of Malaysia to enable stockholders and stakeholders to view the report. Hence, this study will examine the office of auditors pertaining to laws governing eligibility, appointment, qualification, disqualification, resignation and removal. The study will determine whether there are any weaknesses in the relevant laws which contribute to the passive role played by auditors. The study then proceeds to scrutinise whether the powers and rights entrusted to the auditors are adequate in protecting the interests of the stockholders and stakeholders. In doing so, the study will show that the powers and rights of the auditors are superficial in truly protecting the interests of the stockholders and stakeholders. The study will then recommend the necessary reforms to be made to the relevant provisions of the Companies Act 1965 to enhance the accountability of auditors. This is important since there is also a growing trend to make professionals more accountable
NON CUSTODIAL TREATMENT OF OFFENDERS: THE MALAYSIAN APPROACH∗
Get PDFCrime as a social phenomenon has existed throughout the history of mankind, however it is increasingly realized that to reduce the crime rate and deleterious effects of crime on society, a constructive and meaningful policy is required. There is a growing awareness that one such constructive approach is the change from custodial measures of punishment to non-custodial measures. This policy is in line with crime control programs. In all societies efforts are being made to control crime as well as to relieve offenders, their families and societies as a whole from the ill-effects of crime by adopting community-oriented programs of punishment. This article examines closely the aims, the effectiveness and the use of various noncustodial measures. The measures to be discussed in this paper include absolute and conditional discharge, binding over, probation, fine, community services and attendance centers
RECOVERABILITY OF ECONOMIC LOSS ARISING FROM DEFECTIVE BUILDINGS IN MALAYSIA: BALANCING THE JUST INTERESTS
Get PDFThe judicial approach to the recoverability of economic loss arising from defective buildings has been uncertain globally. Malaysia has been no exception to this process. Until recently, it either allowed or disallowed such claim irrespective of the status of the defendant and public interest. However, in two reported cases of 2006, namely Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon and Lim Teck Kong v Dr. Abdul Hamid Abdul Rashid, the court came out with two different judgments although the plaintiffs in both cases claimed defective building economic loss. The varying decisions took into consideration the status of the defendants and public interest rather than the nature of claim. Analysis of both judgments suggests that the Malaysian judiciary is playing a constructive role in the evolution of a just society in Malaysia
DEVELOPMENT OF DORMANT WAQF PROPERTIES: APPLICATION OF TRADITIONAL AND CONTEMPORARY MODES OF FINANCING
Get PDFMaintenance of waqf assets and keeping them in a productive state is emphasized in Islamic legal literature. In addition to traditional avenues, jurists have sanctioned certain special modes for sustaining awqūf, in order to ensure their continuance. Due to the specific legal nature of waqf assets in sharī‘ah, some contemporary modes of financing are not readily practicable in the context of waqf. Equitybased financing modes where a joint venture is initiated with the waqf assets forming part of the joint capital are not acceptable, as such modes involve partial transfer of waqf-ownership. Decreasing partnership and other formats proposed may be used for financing some waqf projects, with due observance of sharī‘ah guidelines. Due to concerns that arise in certain modes principally relating to the issue of ownership, formats based on ijūrah and istisnūʿ appear best suited for financing awqūf
ṢULḤ (MEDIATION) IN THE STATE OF SELANGOR: AN ANALYSIS OF LEGAL PROVISION AND ITS APPLICATION
No full textThe first part of the paper seeks to examine the relevant legal provisions of ṣulḥ in the State of Selangor Darul Ehsan. Thus, the provisions of ṣulḥ as provided for under the Islamic Family Law Enactment 2003 will be discussed and analysed. Other provisions under the Administration of Islamic Religious Enactment 2003, the Syariah Court Civil Procedure Enactment 2003 and the Civil procedure (ṣulḥ) Rules 2001 will also be examined to study the procedures and guidelines in conducting Majlis ṣulḥ. The qualification of ṣulḥ officer will be briefly discussed in the last part of the paper. The paper concludes by commending the initiative that has been taken by the Department of Syariah Judiciary of Selangor in introducing ṣulḥ which has been proven to be very effective in reducing excess cases in the State Syariah Courts