IIUM Law Journal 2018-07-02T03:24:48+00:00 Assoc. Prof. Dr. Majdah Zawawi Open Journal Systems <p><strong></strong>IIUM Law Journal is a peer-reviewed journal, published twice a year, with a dedicated mission of contributing to original and high quality research. The journal accepts scientific research papers on law reform, issues relating to the application of law in practice, comparative legal analysis and harmonisation of Islamic law and civil law.&nbsp;</p> <p><span lang="EN-US">The Journal considers three types of contributions:&nbsp;<em>articles</em>&nbsp;reporting findings of original research;&nbsp;<em>case notes</em>&nbsp;analyzing current and landmark decisions of domestic and international courts and tribunals; and&nbsp;<em>book reviews</em>&nbsp;commenting on recently published law books.&nbsp;</span></p> <h3>VOL 25, NO&nbsp;2 (2017): IIUM LAW JOURNAL is published.</h3> <div id="issueDescription">&nbsp;<strong>TABLE OF CONTENTS</strong></div> <h4 class="tocSectionTitle">ARTICLES&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;</h4> <table> <tbody> <tr> <td width="848"> <p><strong><a href="">INTERNATIONAL LEGAL PERSONALITY OF PROPHET MUḥAMMAD (PBUH)</a></strong></p> </td> <td width="97"> <p><a href="">PDF</a></p> </td> </tr> <tr> <td width="848"> <p>Mohd. Hisham Mohd. Kamal</p> </td> <td width="97"> <p>161-178</p> </td> </tr> <tr> <td width="848"> <p><a href=""><strong>WHITHER POLICING CRYPTOCURRENCY IN MALAYSIA?</strong></a></p> </td> <td width="97"> <p><a href="">PDF</a></p> </td> </tr> <tr> <td width="848"> <p>Sonny Zulhuda, Afifah Sayuti</p> </td> <td width="97"> <p>179-196</p> </td> </tr> <tr> <td width="848"> <p><a href=""><strong>SAME-SEX MARRIAGE: EXPLORING THE IMPLICATIONS OF&nbsp;<em>OBERGEFELL V HODGES</em>&nbsp;ON THE PHILIPPINES’ MUSLIM LAW OF MARRIAGE AND THE 1987 CONSTITUTION</strong></a></p> </td> <td width="97"> <p><a href="">PDF</a></p> </td> </tr> <tr> <td width="848"> <p>Norhabib bin Suod Sumndad Barodi</p> </td> <td width="97"> <p>197-227</p> </td> </tr> <tr> <td width="848"> <p><a href=""><strong>THE POTENTIAL OF&nbsp;<em>WAQF</em>&nbsp;FOR MAINTENANCE AND MANAGEMENT OF STRATIFIED PROPERTIES IN MALAYSIA</strong></a></p> </td> <td width="97"> <p><a href="">PDF</a></p> </td> </tr> <tr> <td width="848"> <p>Nor Asiah Mohamad, Azlinor Sufian, Sharifah Zubaidah, Syed Abdul Kader</p> </td> <td width="97"> <p>229-256</p> </td> </tr> <tr> <td width="848"> <p><strong><a href="">THE RIGHT OF PRIVATE DEFENSE AGAINST NON-ACCOUNTABLE OFFENDERS AND IN DEFENSE OF THE CHASTITY OF WOMEN UNDER ISLAMIC LAW</a></strong></p> </td> <td width="97"> <p><a href="">PDF</a></p> </td> </tr> <tr> <td width="848"> <p>Khalid Owaydhah, Mohamad Ismail bin Mohamad Yunus</p> </td> <td width="97"> <p>257-270</p> </td> </tr> </tbody> </table> <h4 class="tocSectionTitle">&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;</h4> <h4 class="tocSectionTitle">&nbsp;</h4> <h4 class="tocSectionTitle">&nbsp;<strong>ETHICAL STATEMENT</strong></h4> <p><span lang="EN-US"><span lang="EN-US">The IIUM Law Journal is committed to meeting high standards of ethical behaviour at all stages of the publication process. In our <a href="/iiumlj/index.php/iiumlj/manager/files/Downloads/CODEOFPUBLICATIONETHICS.docx" target="_blank" rel="noopener"><span style="text-decoration: underline;">Code of Publication Ethics</span></a>, we set out general expectations for authors, editors, and reviewers of our journal.&nbsp;</span></span></p> <div id="__if72ru4sdfsdfruh7fewui_once" style="display: none;">&nbsp;</div> <div id="__hggasdgjhsagd_once" style="display: none;">&nbsp;</div> SPECIAL FEATURE No Judge is Parliament 2018-06-30T15:33:36+00:00 Tun Abdul Hamid Mohamad <p>Speech delivered at the Symposium on “Constitutional Oath, Rule of Law, and Supreme Policing Role of the Judiciary”, International Islamic University of Malaysia, 30th March 2018.</p> 2018-06-30T00:00:00+00:00 ##submission.copyrightStatement## Rethinking the Issue of Non-Compensability of Civilian Losses Caused by Security Forces During Non-International Armed Conflicts: The Case of the Marawi Crisis in the Philippines 2018-06-30T15:33:36+00:00 Norhabib Bin Suod Sumndad Barodi <p>The terrorism element attendant in an armed conflict does not alter its destructive nature vis-à-vis civilian properties. One example is the Marawi crisis where the Philippine security forces, in response to the threat to national security, territorial integrity, and sovereignty, resorted to aerial bombings and shelling of private buildings, residential houses, and <em>masajid</em> infiltrated by local terrorists, resulting in the destruction of these civilian properties. This article addresses the issue of non-compensability of these civilian property losses. Arguments in favour of and against non-compensability are presented against the backdrop of the concept of reparations in both international law and Philippine domestic law. Based on existing legal realities in Philippine domestic law and jurisprudence, this article finds that reparations in the form of compensation in the context of the Marawi crisis may not be imposed upon the Philippine government as a legal obligation. However, Philippine domestic law and jurisprudence likewise provides for sufficient grounds that reparations in the form of compensation has become the moral obligation of the Philippine government, which it must pursue in the name of justice under a regime of rule of law. Yet ironically, while justice especially during the transition is the ultimate objective of reparations both in its moral and legal contexts, it is only in the latter context that reparations may be pursued judicially. In the final analysis, the non-compensability issue, though a legal one, is a question of choice on the part of the Philippine government.</p> 2018-06-30T00:00:00+00:00 ##submission.copyrightStatement## Compatibility of Islamic Finance and Anti-Money Laundering Laws: A Myth or Reality? 2018-06-30T15:33:36+00:00 Maruf Adeniyi Nasir <p class="abstracttext"><span lang="EN-GB" style="color: black;">Money Laundering (ML) remains a major threat to the financial flow, as well as affecting the economic stability of any nations. It is equally capable of undermining macroeconomic performance and therefore constitutes a very significant risk to both soundness and stability of any financial institution. Foreign direct investments are therefore adversely affected. Unlike that of the capitalist economy and other conventional banking institutions, the risks which ML poses to Islamic finance attracted little or no critical study. This could give the impression that Islamic finance is not in tune with Anti-Money Laundering Laws (AML) and the regulatory regime or that it is anti-AML. The resultant effect of this is unnecessary hostility to Islamic Financial products, which appears not to be in the interest of global economy. This article, therefore, focuses on the relevance of AML principles to Islamic banking. It is revealed that while no financial institution is immune to laundering, the risk-sharing nature of Islamic finances poses less systemic risk than conventional finance. It is recommended that FATF should facilitate studies of potential ML in Islamic finance to put the issue in the right perspective.</span></p> 2018-06-30T00:00:00+00:00 ##submission.copyrightStatement## An Appraisal of the Application of the Concept of Pre-Emption (Shuf’ah) under the Nigerian Laws 2018-06-30T15:33:36+00:00 BASHIR LEKE IJAIYA <p>This article discusses the applicability of the Islamic concept of pre-emption (<em>shuf’ah</em>) under the Nigerian laws. Pre-emption is the first right of a neighbour to purchase an immovable property. This right is available so that a stranger is not introduced as a neighbour,which may cause a hindrance to their privacy. The aim of this article is to examine the significance of pre-emption, which includes: maintenance of a peaceful co-existence in a society; realization and protection of neighbours right; and ensuring the consent of new neighbour over the new owner. In this article, the concept of pre-emption is analysed in the context when it is applied to the Islamic law of succession. Aside from that, the article also looks into the intricacies of its application in Northern Nigeria.</p> 2018-06-30T00:00:00+00:00 ##submission.copyrightStatement## Whistleblowing: A Western and Shari’ah Perspective 2018-07-01T03:08:27+00:00 Nur Hazirah Zainudin Wan Mohd Zulhafiz Wan Zahari <p>The concept of whistleblowing law in Islam is unique and differs from the West as it derives from the elements of <em>Tawhid</em> and <em>Shari’ah</em>. The concept is essentially dynamic and relevant since it was initially introduced during the Islamic ruling era until the present time. The practice of whistleblowing in Islam maintains the public interest (<em>maslahah ‘ammah</em>) which aims in fulfilling the five objectives of <em>Maqasid Shari’ah</em>. On the other hand, the western whistleblowing law was developed in response to tragedies in assuring good governance and protecting the public interest, in which the ideas of good and bad are determined by social norms and not based on the scriptures. In the present time, notably, the role of whistleblower is significant to response to corruption as a global issue plaguing many nations, which causes substantial destruction to social, economic and political aspect. In this regard, the purpose of this paper is to explore and compare the concept and scope of disclosure of whistleblowing law from Shari’ah perspective and its western counterpart and how its principled conviction, upholding public interest disclosure could deal with the current phenomenon plaguing many nations, corruption. With that, the methodology employed in this paper reflected the descriptive, analytic, and prescriptive approaches by analyzing the existing laws, decided cases and literature pertaining to the conceptual and the legal frameworks of whistleblowing under the Western and Islamic jurisprudences.</p> 2018-06-30T00:00:00+00:00 ##submission.copyrightStatement## Guidelines and Legal Ecosystem for the Creation of Islamic Content in Malaysia: Towards Consumer Empowerment 2018-06-30T15:33:36+00:00 ADIBAH ALI Ida Madieha Abdul Ghani Azmi Suzi Fadhilah Ismail Mahyuddin Daud Rokiah Alavi <p class="abstracttext"><span lang="EN-GB">The contents of creative industry must portray the cultural and religious values of the country. As a tool of nation building, creative industry plays a fundamental role in inculcating good values and the avoidance of social illnesses. The objective of this study is to examine the importance and growth of Islamic contents in Malaysian creative industry. By employing qualitative research methods, namely, content analysis and interviews, the study found that there is increase in the demand for Islamic contents. This study intends to highlight some of the concerns raised by both producers and consumers of creative content with the hope of empowering consumers in choosing content that is more suitable to their cultural and religious needs. For the Islamic content industry to flourish, having a supportive legal eco-system is imperative. This study explores the existing guidelines on Islamic content as a well as relevant legislation that governs content creation in Malaysia. The study concludes with some policy recommendations that would assist in harnessing the creation of Islamic content in Malaysia.</span></p> 2018-06-30T00:00:00+00:00 ##submission.copyrightStatement## A Study on the Socio-Economic Roles of Waqf Ahli (Family Waqf) in Promoting Family Security and a Sustainable Family Economy 2018-07-02T03:22:31+00:00 Nor Asiah Mohamad <p>The challenges associated with financial stability and sustainability of family economy in the future are increasing. The most worrying is the problems facing the survivors after the death of their breadwinners. The majority of Muslims are rarely ready for this possibility and many lacks the knowledge on how to face such a situation.&nbsp; Some wrongly hold to the view that such preparation is not encouraged in Islam, against the principle of <em>faraidh</em> (estate planning) and an act of avoiding taxation and etc. In this article, it is shown that although <em>waqf</em> (Islamic endowment) appears in the form of charity but the outcomes are tremendous, encompassing family future investment and income generating. Employing a doctrinal analysis by looking into the available literatures on <em>waqf</em>, this article discusses how waqf ahli can contribute to family security and ensure a sustainable family economy. It is shown that Islamic endowment (<em>waqf</em>) aims to preserve and protect property for the use of the public; including spending on family. In addition, family <em>waqf</em> saves the heirs' property or business from fragmentation. Most importantly, it ensures sustainable family financial planning within the Shari‘ah framework while adding value to the existing family property or business.</p> 2018-06-30T00:00:00+00:00 ##submission.copyrightStatement## Establishing Legal Rights and Liabilities for Artificial Intelligence 2018-07-02T03:23:40+00:00 Nur Adlin Hanisah Shahul Ikram Mohd Yazid Zul Kepli, Dr <p class="abstracttext"><span lang="EN-GB">The rapid development of technology has enabled the creation of artificial intelligence. Even the most vocal critics against artificial intelligence and automated systems acknowledge the tremendous benefits offered by this new technology as can be seen in various aspects of human life from trade and commerce, healthcare, safety and security, transportation to social life and beyond. At the same time, the spread of artificial intelligence, automated systems, and robotics poses an incredible risk to our jobs, privacy, safety, health and more. The purpose of this article is to understand the level of impact posed by artificial intelligence and to establish legal rights and liabilities for artificial intelligence. This article also analyzes the viewpoint of Islam on this phenomenon. This article is mostly library-based, benefitting from the extensive literature already available in international journals, books by scholars, and online news. In addition, this article also benefitted from interviews with scholars and experts on cybersecurity and artificial intelligence. The ultimate focus is on the possible recognition of artificial intelligence as a legal entity in its own right, capable of possessing rights and liabilities. The additional focus is on the Islamic perspective on the matter. This article shows that there is an urgent need to establish a uniformed minimum legal rights and liabilities for parties involved, including consumers, manufacturers, and designers, although such rights and liabilities can be tailored to fit the unique scenarios faced by the parties. This article reveals that Islam provides various useful guidelines on this modern and unique matter.</span></p> 2018-06-30T00:00:00+00:00 ##submission.copyrightStatement## Viability and Legality of Muslims Offering Products or Services Exclusively for Muslims 2018-07-02T03:24:48+00:00 Nuraisyah Chua Abdullah Herwina Rosnan Norzayana Yusof <p class="abstracttext"><span lang="EN-GB">The debate on ‘Muslim-Only Laundrette’ in Johor, a state at southern Peninsular Malaysia has sparked outrageous responses from various levels of the society. Given the fact that there is scant literature to address this issue, by adopting the qualitative approach, this article aims to explore the issue, from a business perspective about where Muslim products and services stand in Malaysia and the legal aspects of offering goods and services exclusively from Muslims for Muslims. The right to segmentise customers based on religious grounds is critically analysed. This article discusses the governance of Muslim businesses, the issue of discrimination of goods and services in comparison with the position in the United Kingdom, United States of America and Australia. The possibility of mediation services in response to the national call for social harmony is also explored. This article concludes that detailed guidelines to differentiate discriminatory acts from adherence to religious duties should be given to service providers to avoid interreligious misunderstanding. The article further suggests that one of the possible marketing strategies to avoid discrimination claims could be to take a more moderate stand in marketing services such as ‘clean, friendly services' and the like apart from marketing to the Muslim audience through targeted marketing channels, such as Muslim media, local publications in Muslim majority countries, as well as targeted advertisement campaigns.</span></p> 2018-06-30T00:00:00+00:00 ##submission.copyrightStatement##