International Islamic University Malaysia (IIUM) Law Journal
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“MONEY MATTERS”; DIVIDING BUSINESS INTERESTS ON DIVORCE OR DISSOLUTION: SPECIAL REFERENCE TO THE BUSINESS ENTITIES
Full text linkIn Malaysia, the contribution test is applied by both the Civil and Shariah courts to determine claims in business interest as matrimonial property. However, it is observed that different from claims on interest in personal property, the courts have to apply additional test other than the contribution test in determining claims of matrimonial property in business interest. This is because the ownership structure in business are different from ownership of personal property and highly dependents on types of the business entities. Apart from analyzing the approaches adopted in the Malaysian courts in dividing business interest upon divorce or dissolution of marriage, this research also highlights the arising legal issues which may arise in respect of different business entities in which the business interest exists. This study was conducted primarily through a doctrinal study of existing literature such as articles, journals and the decision from the relevant case laws which was decided in both the Civil and Shariah courts. This research found that other than types of business entities, the interest of parties in business is also determined by the quantum of shareholding or contribution in the business
‘ISOLATED IN OUR OWN NEIGHBOURHOOD’: ANALYSIS ON THE PROPOSAL TO REGULATE PEER-TO-PEER ACCOMMODATION SERVICES IN MALAYSIA
Full text linkPeer-to-Peer Accommodation services (P2PA) are mushrooming worldwide due to the expansion of digital services and Internet access. Since P2PA services operate fully online, small establishments utilise disruptive technology and surpass traditional hoteliers by surprise. In the first part of this article, we examine the problems caused by P2PA for ‘playing on an uneven field’, avoiding necessary taxes, skipping regulatory and safety requirements, and causing loss of tranquillity to the neighbourhood. Due to these problems, a proposal was moved by the government to regulate P2PA in Malaysia via a self-regulatory guideline, as analysed in the second part of the article. However, due to its non-binding status, the proposal will arguably lead to irregularities in regulatory mechanisms at the state level when enforced. P2PA hosts were asked to comply with regulatory requirements similar to hoteliers, but the platform providers have arguably avoided any P2PA related liability nor responsibility as they operate offshore. Applying qualitative research methods via content analysis and semi-structured interviews, the article concludes by proposing a legal framework to regulate the P2PA platform providers, including hosts and agents, which is deemed timely and necessary for Malaysia to safeguard the interests of both tourists and stakeholders
AN OVERVIEW OF SELECTED MASLAHAH BASED FATWAS RELATING TO FAMILY LAW ISSUES IN MALAYSIA
Full text linkIslamic law is primarily based on the Qur’an and the Sunnah of the Prophet (s.a.w). Due to the changes in place and time, there are occasions where new cases may not have clear and direct principles from the Qur’an and the Sunnah of the Prophet (s.a.w). Accordingly, solutions for new cases require the exercise of ijtihad and application of fatwa in establishing new rulings. This study deals with selected maslahah based fatwas on issues relating to family law in Malaysia. The study is undertaken in order to provide an overview on the issuance of maslahah based fatwa relating to family law issues, so that sound new rulings could be established for the benefit of the whole nation. Focus is made on fatwas that have been issued relating to child marriages, legitimacy of children and ascription of paternity, jointly acquired property and suckling relationships. In Malaysia, family matters fall under the jurisdiction of the state. Therefore, if a new case arises and it requires a legal opinion, a State based fatwa will be issued. The study adopts a qualitative research methodology based on available library-based materials. State fatwas are also referred to and examined. Finally, the article suggests improvements to the exercise of ijtihad and the issuance of fatwa in Malaysia
PROSPECTS FOR ISLAMIC MICROFINANCE UNDER THE EXISTING LEGAL AND REGULATORY FRAMEWORK IN LIBERIA
Full text linkThere is no specific regulation or legislative framework for Islamic microfinance operations in Liberia. This is largely due to the non-application of Islamic laws in the country, despite the increasing economic strength of Muslims in the country. This article aims to examine whether the existing laws in Liberia permit the establishment and operation of Islamic microfinance. The research employed a qualitative analytical approach, which examines legal and regulatory framework for the microfinance sector in Liberia. The materials and data which include related laws were collected, and analysed inductively to suit the needs of the research. This article argues that, the existing laws including the Liberian constitution and other relevant financial regulations such as, the Central Bank of Liberia Act of 1999, the New Financial Institutions Act of 1999 and the Microfinance Policy and Regulatory & Supervisory Framework for Liberia (MPRSFL) have no objection to the introduction of Islamic microfinance in the country. This research is a first to appraise critically some relevant laws on the legal framework of microfinance in Liberia and its relevance to Islamic microfinance. The Financial Institutions Act of 1999 confers on the Central Bank of Liberia the powers to regulate and supervise all financial institutions in the country, including the microfinance providers. The article concludes that the stakeholders need to continue supporting the microfinance sector, including Islamic microfinance in Liberia by building an appropriate legal ecosystem that providing for a smooth running of microfinance programmes in the country
DETERMINATION OF A CHILD’S HABITUAL RESIDENCE IN INTERNATIONAL CHILD ABDUCTION CASES: CHARTING THE WAY TOWARDS HARMONIZATION
Full text linkThe 1980 Child Abduction Convention is aimed at addressing the increasingly disturbing problem of trans-border parental child abduction, its key mechanism being to promptly return an abducted child to his or her country of ‘habitual residence.’ In essence, habitual residence is established as the chosen personal connecting factor in international child abduction cases. However, in view of the failure of the Convention to define the term, it has become the responsibility of the courts around the world to improvise their own standards for the determination. The objectives of the present paper, therefore, are to assess the deplorable situation of fragmented approaches and standards used by the courts in determining habitual residence of a child and to explore the recent developments in judicial pronouncements in order to be able to demonstrate the changing trend in the jurisprudence of the courts. To achieve these, the paper looks into and appraises the decisions of the courts of the United States of America, Canada, the European Union, the United Kingdom and other common law countries. The paper concludes that the changing trend is clearly discernible and a number of courts of States parties are increasingly applying a hybrid or combined approach rather than various subjective and one-sided approaches and thus moving towards the achievement of harmonization in the determination of a child’s habitual residence, the underlying principle of the Convention.  
THE CHALLENGES IN ENFORCING POST DIVORCE ORDERS OF NATIVE COURTS IN EAST MALAYSIA
Full text linkThe native court in Malaysia comprises of Mahkamah Anak Negeri Sabah and Mahkamah Bumiputera Sarawak. The existence of this court is recognised by the Malaysian Government and they are mentioned in the Federal Constitution of Malaysia. Although these courts are given power and authority in dealing with the personal law of natives in each state, there are challenges in enforcing post-divorce orders made by these courts. This article is significant since there is a dearth of study on this topic. The main objective of this article is to examine the enforcement of post-divorce orders of native courts within East Malaysia. It will also explore the problems and challenges of divorcees in enforcing divorce orders and provide recommendations to improve the existing system. This article adopts library-based and qualitative research method which consists of group discussions and interviews with the village headman (ketua kampung), headman (penghulu), community leader, native courts’ judges, native court of appeal’s judge, registrar of native court and several divorcees. The result of this research identified four challenges vis-a-vis: the capability to find the husband upon the issuance of the divorce order; second, husband’s default payment of maintenance; lack of manpower in enforcing the order and lastly, husband’s conversion to Islam. Thereafter, this article suggests that the government could provide assistance by empowering court bailiffs or enforcement bodies, increasing funding and to designate a special department for enforcement of divorce order
AN EMPIRICAL STUDY ON POST DIVORCE ENFORCEMENT OF COURT ORDERS IN MALAYSIA
Full text linkThis study investigates problems on the enforcement of court orders issued by the civil courts in divorce cases in Malaysia. Although the civil courts are guided by comprehensive statutory laws, however, issues on matters related to the enforcement of court orders especially maintenance orders are still unresolved. Therefore, this study is undertaken to examine and identify problems that have caused the failure to enforce these orders, post-divorce. A survey was conducted on one hundred and sixty-seven respondents came from five regions in Malaysia. The survey using questionnaires was the main method of collecting data. To support the empirical evidence, semi-structured interviews were also conducted in this study. The study discloses an obvious co-relation between complex and lengthy processes, unnecessary time consuming and costs inefficiency with the enforcement of orders after the divorce has taken place. This article is a prelude to a projected study on the enforcement of court orders issued by Civil Courts whereby the result will be useful for further improvement of the existing legal provisions in Malaysia
AN ISLAMIC PERSPECTIVE ON PREVENTING SEXUAL ABUSE AGAINST CHILDREN
Full text linkSexual abuse against children in Malaysia has been consistently on the rise. The Ministry of Women, Family and Community Development, Malaysia has stated that a total of 1,721 cases of sexual crimes against children were recorded in the first half of 2020. Most offenders in such cases were family members, guardians and those close to the children. This is an alarming number. Islam treats sexual abuse against children as a serious offence that must be strictly curbed. In Islam, any sexual activity out of wedlock is condemned and considered as a punishable act. It is even worse when the act is committed against the will of victim or it is committed against those who are physically and mentally weak as well as those whose consent is not yet valid such as children. This article discusses measures to prevent sexual abuse against children which are derived from the Shari`ah principles. It adopts a doctrinal study of existing primary and secondary materials relating to theories of victimization and methods to prevent criminal victimization against children from the Islamic perspectives. Hence, Shari’ah texts and juristic views on the relevant issues are essential to be analysed. The finding of this article confirms that Islam has a unique approach to deal with this issue and to even prevent the crime before it is committed. Islam suggests proactive steps that could be observed by individuals, guardians, the community as well as authorities concerned to ensure that the children are protected and do not become gullible victims
THE DIGITAL ECONOMY AND THE QUEST FOR PRIVACY PROTECTION IN BANGLADESH: A COMPARATIVE LEGAL ANALYSIS
Full text linkThe present unbridled advancement in the field of information and communication technology has resulted in individuals being thrust at a crossroad, where refusing to sacrifice one’s privacy would mean the denial of technological benefits. Concern for privacy begins once a child is born into this world where the right to privacy could now be argued needs to be considered as one of the basic human rights similar to other inalienable rights such as the right to life and liberties. Bangladesh is one of the countries that has not given explicit recognition to the right of privacy. This is evident from the absence of explicit indications of the right to privacy in the Constitution of Bangladesh and judicial interventions make the constitutional protection of privacy questionable. The purpose of the present study is to find out whether the right to privacy is in fact recognized and protected by the Constitution of Bangladesh by examining specific provisions in the Constitution of Bangladesh to locate provisions that could be relied on to show that a sliver of recognition could be given to the right of privacy in Bangladesh. This position is then compared to other jurisdictions, especially the common law jurisdictions. The study finds that although Article 43 of the Constitution guarantees limited protection that encompasses the right to privacy of home and correspondence but if read together with the right to life and liberty in Article 32, it could be argued that these are viable provisions in recognizing the right to privacy under the Constitution of Bangladesh