IIUM Law Journal最新文献_第8页

AN OVERVIEW OF SELECTED MASLAHAH BASED FATWAS RELATING TO FAMILY LAW ISSUES IN MALAYSIA 马来西亚以马沙拉哈为基地的关于家庭法问题的FATWAS综述

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IIUM Law Journal Pub Date : 2021-06-30 DOI: 10.31436/iiumlj.v29i1.652

A. Mohd, B. Ibrahim, Siti Zainab Abd Rashid

{"title":"AN OVERVIEW OF SELECTED MASLAHAH BASED FATWAS RELATING TO FAMILY LAW ISSUES IN MALAYSIA","authors":"A. Mohd, B. Ibrahim, Siti Zainab Abd Rashid","doi":"10.31436/iiumlj.v29i1.652","DOIUrl":"https://doi.org/10.31436/iiumlj.v29i1.652","url":null,"abstract":"Islamic 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.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49092826","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

A NEW ROLE OF CAUSATION THEORY TOWARDS ACHIEVING ECONOMIC CONTRACTUAL EQUILIBRIUM: ANNULLING THE ARBITRARY CONTRACTUAL CONDITIONS 因果关系理论在实现经济契约均衡中的新作用:废除任意契约条件

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IIUM Law Journal Pub Date : 2021-06-30 DOI: 10.31436/iiumlj.v29i1.481

Osama Ismail Mohammad Amayreh, Izura Masdina Mohamed Zakri, Pardis Moslemzadeh Tehrani, Y. Shandi

{"title":"A NEW ROLE OF CAUSATION THEORY TOWARDS ACHIEVING ECONOMIC CONTRACTUAL EQUILIBRIUM: ANNULLING THE ARBITRARY CONTRACTUAL CONDITIONS","authors":"Osama Ismail Mohammad Amayreh, Izura Masdina Mohamed Zakri, Pardis Moslemzadeh Tehrani, Y. Shandi","doi":"10.31436/iiumlj.v29i1.481","DOIUrl":"https://doi.org/10.31436/iiumlj.v29i1.481","url":null,"abstract":"The phrase “who says contractual, says justice” (qui dit contractuel dit juste) does not fully express the truth of present reality, where the phrase itself falls into doubt, since a contract does not always result in fair obligations. In this regard, the French judiciary realized that the absence of justice in a contract might arise as a result of the contractual freedom afforded to the contracting parties. Thus, the idea of Commutative Justice in the contract was developed, such as, the Chronopost’s decision which is considered one of its most important applications. However, the equivalence of rights and obligations in the Palestinian Draft Civil Code only exists in a virtual form, without any content that actually contributes to the achievement of the equivalence between rights and obligations in contracts. This article seeks to prove that the provisions of the causation theory in the Palestinian Draft Civil Code can be used as an effective means for achieving contractual justice between the contracting parties, in order to maintain economic contractual equilibrium of the contract. To do so, the function of the causation theory should be analysed in a comparative analytical approach with the Chronopost’s decision to illustrate the Palestinian legislative deficiencies. It will also show the need for adopting the French judicial approach, which will establish a general rule that any arbitrary clause that contravenes the essential obligation of the contract is considered to be unwritten, regardless of the nature or the subject matter of the contract.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41815161","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

COMBATING CHILD TRAFFICKING: IS THE CONVENTION ON THE RIGHTS OF THE CHILD (CRC) AND EXISTING LAWS IN MALAYSIA ADEQUATE? 打击贩卖儿童：《儿童权利公约》和马来西亚现行法律是否足够？

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IIUM Law Journal Pub Date : 2021-06-30 DOI: 10.31436/iiumlj.v29i1.593

Norehan Kamaruddin, N. M. Zin

{"title":"COMBATING CHILD TRAFFICKING: IS THE CONVENTION ON THE RIGHTS OF THE CHILD (CRC) AND EXISTING LAWS IN MALAYSIA ADEQUATE?","authors":"Norehan Kamaruddin, N. M. Zin","doi":"10.31436/iiumlj.v29i1.593","DOIUrl":"https://doi.org/10.31436/iiumlj.v29i1.593","url":null,"abstract":"This article is a study on human trafficking, which is the second most lucrative and profitable transnational organized crime in the world after drug trafficking. This crime is also known as a form of modern slavery, where humans are used as commodities to generate profit, and victims are prevented from accessing their fundamental rights. The victims of this crime are women, men, and children; however, the repercussions are far more serious when involving children. Human trafficking devastates the prospects of the future generation, where children are often forced into sexual exploitation, forced labour, illegal adoption and child marriage. In addition, such crime not only impacts the social, politic, economic and national security of a country but is also a grave violation of the child victims’ human rights. The main objective of the present article is to address the adequacy of Malaysian law in dealing with child trafficking and to see whether it is in line with international standards. The study suggests that many gaps exist in the current legislation dealing with human trafficking. These gaps need to be addressed especially those dealing with child trafficking. A qualitative approach was utilized in this study, where it involved library research to analyze the protection given by the Convention on the Rights of the Child and the extent of its implementation into domestic legislation, in order to combat child trafficking in Malaysia. This study found that Malaysia’s existing laws are inadequate to protect child victims of trafficking in Malaysia and need to meet the current standards and protection for victims, which include the identification of identity, appointment of a guardian, providing interim care protection, durable solution, and access to justice.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41953230","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

WATANIC JURISPRUDENCE: ARTICULATING THE LEGITIMATE ELEMENTS OF THE BASIC STRUCTURE OF THE FEDERAL CONSTITUTION 美国法学:阐明联邦宪法基本结构的合法要素

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IIUM Law Journal Pub Date : 2021-06-30 DOI: 10.31436/iiumlj.v29i1.650

Wan Ahmad Fauzi, Wan Husain

{"title":"WATANIC JURISPRUDENCE: ARTICULATING THE LEGITIMATE ELEMENTS OF THE BASIC STRUCTURE OF THE FEDERAL CONSTITUTION","authors":"Wan Ahmad Fauzi, Wan Husain","doi":"10.31436/iiumlj.v29i1.650","DOIUrl":"https://doi.org/10.31436/iiumlj.v29i1.650","url":null,"abstract":"The doctrine of the basic structure of a constitution would be undisputable if those elements thereunder are clear and representing the facts of our local history, nationhood, and the principle of the rule of law. Former Chief Justice Tun Abdul Hamid Mohamad argued that the doctrine of the basic structure of a constitution introduced by the Indian Supreme Court contradicts Article 159 of the Federal Constitution and beyond the competent jurisdiction of the local courts. Hence, this article puts forward the conceptual framework of the basic structure adopted by the Federal Court in the case of Indira Gandhi to articulate those elements summed therein viewed from the watanic jurisprudence. The watanic jurisprudence analyses legal documents and sources of sovereignty based upon two philosophical worldviews; continuum and dichotomous frameworks relying upon the local legal history context and the present legal provisions of a country. Depending on a broad and purposive manner in proper linguistic, philosophic, and historical contexts of the Malaysian legal historical documents, the legitimate elements of the basic structure are the principle of sovereignty as embedded in the oath of office of the Yang di-Pertuan Agong together with the matters aggregated in Article 38(4), Article 159(5) and Article 161E. The oath of the Yang di-Pertuan Agong thus legitimizes Syariah compliance as the rule of law. The Federal Constitution of Malaysia also expressly protects its basic structure with strict conditional amendments. In conclusion, the basic structure of our Federal Constitution must be viewed from our local circumstances in compliance with the principle of constitutional supremacy and the rule of law.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41837170","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1

THE USE OF FLOGGING AS A PUNISHMENT IN SAUDI ARABIA FROM THE PERSPECTIVE OF INTERNATIONAL HUMAN RIGHTS LAW 从国际人权法的角度看沙特阿拉伯使用鞭刑

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IIUM Law Journal Pub Date : 2021-06-30 DOI: 10.31436/iiumlj.v29i1.609

Hind Sebar, Shahrul Mizan Ismail

{"title":"THE USE OF FLOGGING AS A PUNISHMENT IN SAUDI ARABIA FROM THE PERSPECTIVE OF INTERNATIONAL HUMAN RIGHTS LAW","authors":"Hind Sebar, Shahrul Mizan Ismail","doi":"10.31436/iiumlj.v29i1.609","DOIUrl":"https://doi.org/10.31436/iiumlj.v29i1.609","url":null,"abstract":"Flogging is one of the most widely-used corporal punishments in Islamic penology. Most countries that practice Islamic criminal law use flogging to punish a variety of crimes and offenses. Saudi Arabia is one of the countries that use flogging to punish various crimes and has faced immense backlash from the international community for gross violation of human rights. The goal of this article is to investigate the implementation of flogging as a punishment in Saudi Arabia. Moreover, it also examines how international human rights law has contributed to limiting flogging as a form of criminal punishment. This study has critically analysed several human rights documents in order to understand how flogging is viewed under international human rights law if compared to the position under the Shari‘ah. Focus on the implementation of flogging in Saudi Arabia is made in particular. In addition, it is found that the application of flogging in Saudi Arabia is overused and is uncodified. Hence, the article signifies the necessity of codifying Islamic law to ensure fair legal procedures. Interestingly, a recent announcement that abolishes flogging as a common form of punishment, indicates the willingness of the kingdom to implement judicial reforms, thereby creating a ray of hope in the form of amendment of laws.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48484131","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 4

HEALTH AND HUMAN RIGHTS WITHIN THE CONTEXT OF INTERNATIONAL HUMAN RIGHTS LAWS AND THE MALAYSIAN CONSTITUTION 在国际人权法和马来西亚宪法范围内的健康和人权

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IIUM Law Journal Pub Date : 2021-06-30 DOI: 10.31436/iiumlj.v29i1.536

K. Mokhtar

{"title":"HEALTH AND HUMAN RIGHTS WITHIN THE CONTEXT OF INTERNATIONAL HUMAN RIGHTS LAWS AND THE MALAYSIAN CONSTITUTION","authors":"K. Mokhtar","doi":"10.31436/iiumlj.v29i1.536","DOIUrl":"https://doi.org/10.31436/iiumlj.v29i1.536","url":null,"abstract":"Health rights, unlike political and economic rights, until recently has not received sufficient attention that it truly deserves despite being equally important as other aspects of human rights. It is timely that the right to health be given serious attention and more coverage by the media, legal fraternity and the authorities as well as by the public at large. Unfortunately, the Malaysian Constitution does not have any express provision which recognizes health right and no laws in the country so far acknowledged such right. Hence, this research is done to supplement the gap. This is a legal research which applies qualitative approach focusing on rights relating to private and public health. It is a doctrinal and jurisprudential study and examines international and national laws, especially the Malaysian Constitution. Health is essential for a good life of any human being. Without it a person cannot have a quality life. Although it cannot be expected that government must guarantee everybody will be healthy it cannot be denied that among the functions and obligations of the governments are to provide healthcare services to the community and ensure that facilities and avenues for medical treatments are available to the people. This right has been firmly established in international human rights laws. Its realization has been the subject and objective of various international conventions and policies. It is believed that right to health is ingrained in the constitution of the country and should be recognized by the courts and the governments.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42666768","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Book Review: Muslim Conduct of State, by Muhammad Hamidullah 书评:穆罕默德·哈米杜拉的《穆斯林的国家行为》

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IIUM Law Journal Pub Date : 2021-06-30 DOI: 10.31436/iiumlj.v29i1.628

F. Muhammadin

引用次数: 0

THE ROHINGYA GENOCIDE CASE (THE GAMBIA V MYANMAR): BREACH OF OBLIGATIONS ERGA OMNES PARTES AND THE ISSUE OF STANDING 罗兴亚灭绝种族案（冈比亚诉缅甸）：对普遍义务的违背与地位问题

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IIUM Law Journal Pub Date : 2021-06-30 DOI: 10.31436/iiumlj.v29i1.630

A. Hamid

{"title":"THE ROHINGYA GENOCIDE CASE (THE GAMBIA V MYANMAR): BREACH OF OBLIGATIONS ERGA OMNES PARTES AND THE ISSUE OF STANDING","authors":"A. Hamid","doi":"10.31436/iiumlj.v29i1.630","DOIUrl":"https://doi.org/10.31436/iiumlj.v29i1.630","url":null,"abstract":"On 23rd January 2020, the International Court of Justice indicated provisional measures to protect the Rohingya from the alleged genocidal acts committed in Myanmar. Rejecting the argument made by Myanmar, the World Court decided that The Gambia has standing before the court although it was not directly injured by the alleged wrongful act. The court applied the concept of “obligations erga omnes partes” in the context of its ruling on standing. The court, however, did not elaborate more on the concept and did not touch on its details. Since this case had attracted so much international attention, the concept has become a trending topic for legal discourse. This article, therefore, is an attempt to resolve the issues of whether the concept of obligations erga omnes partes has been established as a rule of customary international law and whether such an obligation may arise from any type of multilateral treaty and any provision in a multilateral treaty. To this end, the article analyses the jurisprudence of the International Court of Justice (ICJ), the case law of international human rights courts and the work and the valuable commentary of the International Law Commission on Article 48 of the Articles on the Responsibility of States for Internationally wrongful Act 2001. The article concludes that the concept of obligations erga omnes partes has been established as a rule of customary international law, that it may arise from any type of multilateral treaty and that it is applicable only in relation to the provision of a treaty that is essential to the accomplishment of object and purpose of the treaty.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48060434","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

CLAIMING ENHANCED EARNING CAPACITY IN MATRIMONIAL PROPERTY DISPUTES: LESSONS FROM NEW ZEALAND 在婚姻财产纠纷中主张提高赚钱能力:来自新西兰的经验

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IIUM Law Journal Pub Date : 2021-05-12 DOI: 10.31436/IIUMLJ.V29I(S1).635

Ravindran Nadarajan, Norliah Ibrahim, N. M. Zin

{"title":"CLAIMING ENHANCED EARNING CAPACITY IN MATRIMONIAL PROPERTY DISPUTES: LESSONS FROM NEW ZEALAND","authors":"Ravindran Nadarajan, Norliah Ibrahim, N. M. Zin","doi":"10.31436/IIUMLJ.V29I(S1).635","DOIUrl":"https://doi.org/10.31436/IIUMLJ.V29I(S1).635","url":null,"abstract":"Upon divorce, the economic disparities between the spouses are usually disputed where the non-acquiring spouse is left with little or no matrimonial property. This article discusses the application of the enhanced earning capacity principle as practiced in New Zealand in order to examine possible adoption in Malaysia. Analysis of New Zealand’s judicial decisions is made in order to identify approaches in determining future assets as matrimonial property to compensate for the economic disparity between spouses. The article proceeds to consider applications of those principles by the Malaysian courts under Section 76 of Law Reform (Marriage and Divorce) Act 1976. Considering this issue, it is found that the enabling statute is New Zealand’s Property (Relationships) Amendment Act 2001 recognizes that upon divorce, the enhanced earnings acquired during the marriage are subject to a division on the basis that the other spouse has also directly or indirectly contributed to compensate the economic disparity suffered by the referred spouse. The case law analysis is conducted on selected cases merely to justify on the enhanced earning capacity distributed as matrimonial property in New Zealand. Undoubtedly, the claim on enhanced earning capacity as the matrimonial property will compensate the spouse if his or her living standards and income become significantly lesser than the other party due to divorce.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":"29 1","pages":"61-71"},"PeriodicalIF":0.2,"publicationDate":"2021-05-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45182000","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

“MONEY MATTERS”; DIVIDING BUSINESS INTERESTS ON DIVORCE OR DISSOLUTION: SPECIAL REFERENCE TO THE BUSINESS ENTITIES “钱的问题”;离婚或解散时分割商业利益:特指商业实体

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IIUM Law Journal Pub Date : 2021-05-12 DOI: 10.31436/IIUMLJ.V29I(S1).636

Norliah Ibrahim, Zuhairah Ariff Abdul Ghadas, R. C. Soh

{"title":"“MONEY MATTERS”; DIVIDING BUSINESS INTERESTS ON DIVORCE OR DISSOLUTION: SPECIAL REFERENCE TO THE BUSINESS ENTITIES","authors":"Norliah Ibrahim, Zuhairah Ariff Abdul Ghadas, R. C. Soh","doi":"10.31436/IIUMLJ.V29I(S1).636","DOIUrl":"https://doi.org/10.31436/IIUMLJ.V29I(S1).636","url":null,"abstract":"In 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.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":"29 1","pages":"73-90"},"PeriodicalIF":0.2,"publicationDate":"2021-05-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46385785","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0