IIUM Law Journal http://journals.iium.edu.my/iiumlj/index.php/iiumlj <p>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="http://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/view/341">INTERNATIONAL LEGAL PERSONALITY OF PROPHET MUḥAMMAD (PBUH)</a></strong></p> </td> <td width="97"> <p><a href="http://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/view/341/218">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="http://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/view/342"><strong>WHITHER POLICING CRYPTOCURRENCY IN MALAYSIA?</strong></a></p> </td> <td width="97"> <p><a href="http://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/view/342/222">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="http://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/view/307"><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="http://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/view/307/217">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="http://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/view/308"><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="http://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/view/308/219">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="http://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/view/317">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="http://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/view/317/220">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"><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> IIUM Journal Publications en-US IIUM Law Journal 0128-2530 <ol><li><strong>Consent to publish</strong>: The Author(s) undertakes that the article named above is original and consents that the IIUM Press publishes it.</li><li><strong>Previous publication</strong>: The Author(s) guarantees that the article named above has not been published before in any form, that it is not concurrently submitted to another publication, and that it does not infringe anyone’s copyright. The Author(s) holds the IIUM Press and Editors of IIUM Law Journal harmless against all copyright claims.</li><li><strong>Transfer of copyright</strong>: The Author(s) hereby transfers the copyright of the article to the IIUM Press, which shall have the exclusive and unlimited right to publish the article in any form, including on electronic media. The Journal in turn grants the Author(s) the right to reproduce the article for educational and scientific purposes, provided the written consent of the Publisher is obtained. </li></ol> International Legal Personality of Prophet Muḥammad (pbuh) http://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/view/341 <p>An international legal person is a subject of international law who enjoys rights, duties or powers in international law and the capacity to act on the international plane. Under modern international law, States are international persons, whereas private individuals are not. This article discusses whether Prophet Muḥammad (pbuh) of the religion of Islam was an international legal person. Evidence shows that his correspondences with other States and nations were in his name “Muḥammad ibn ‘Abdullāh” or “Muḥammad the Messenger of Allah,” and not as the head of the City-State of Medina. Was he recognised as such by the international community at that time? This work finds that Prophet Muḥammad (pbuh) was accepted by the international community during his time as an international legal person. His personality was due to his unique position as a prophet.</p> Mohd. Hisham Mohd. Kamal ##submission.copyrightStatement## 2017-12-31 2017-12-31 25 2 161 178 Whither Policing Cryptocurrency in Malaysia? http://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/view/342 <p class="abstracttext">Cryptocurrency, like Bitcoin, is a digital currency in which encryption techniques are used to regulate the generation of units of currency and verify the transfer of funds, operating independently of a central bank. It is an emerging financial technology enabled by innovation, increasingly popular among global Internet users, and more interestingly, it challenges the existing financial and regulatory rules on the currency and payment systems of the world today. On the other side, certain cryptocurrency like Bitcoin, have been actively used as payment tools for illicit transactions. Both the “promising” and "challenging" faces of cryptocurrency trigger causes for concern for policy makers, not only from financial sector, but also legal and technological sectors. The decentralised nature of cryptocurrency creates unique problems for the government to regulate or impose any regulatory requirements. This article argues that, in order for Malaysia to remain at the forefront of financial and digital innovation, it is timely to look at the question on whether to formulate certain policy and regulatory framework on the use of cryptocurrency in Malaysian market. The answer can pave the way for Malaysian digital citizens to potentially grab the opportunities made possible by the cryptocurrency technology. For this purpose, the researchers seek to study the features of cryptocurrency and the experiences from policymakers in other jurisdictions in dealing with the matter.</p> Sonny Zulhuda Afifah binti Sayuti ##submission.copyrightStatement## 2017-12-31 2017-12-31 25 2 179 196 Same-Sex Marriage: Exploring the Implications of Obergefell v Hodges on the Philippines’ Muslim Law of Marriage and the 1987 Constitution http://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/view/307 <p class="abstracttext"><a name="OLE_LINK6"></a>In view of the recent development brought about by the decision of the U.S. Supreme Court in <em>Obergefell v. Hodges,</em> jurisdictions that retain the traditional definition of marriage have sufficient reasons to revisit the concept of marriage under their own laws. This article is an academic effort to explore whether the traditional or historic definition of marriage adopted in the Philippines, as articulated in its Constitution and other pertinent laws like the Code of Muslim Personal Laws of the Philippines can withstand the new norm that <em>Obergefell</em> established in the legal system or constitutionalism of the United States. It attempts to project how the issue of same-sex marriage would be treated and decided in the Philippine context had it been an issue for which the Philippine legal system or constitutionalism is made to respond. This article emphasizes the incompatibility of the <em>Obergefell</em> decision with the Islamic definition of marriage and finds that the same decision is not entirely square with how the issue of same-sex marriage will be dealt with in Philippine constitutionalism.</p> Norhabib Bin Suod Sumndad Barodi ##submission.copyrightStatement## 2017-12-31 2017-12-31 25 2 197 227 The Potential of Waqf for Maintenance and Management of Stratified Properties in Malaysia http://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/view/308 <p>This article explores the possibility of implementing the concept of <em>waqf </em>within the financial management of a strata scheme for the purpose of covering the costs to maintain and manage common properties. High prices of land and the lack of strategic locations for housing has influenced developers to opt for stratified development. The challenge, most of the time, pertains to the maintenance of common areas, which requires substantial funds and professionalism, as well as skills in developing social and human relationships, despite the continual increase in the costs of management. Using doctrinal analysis of primary and secondary data, as well as comparative analysis with strata regulations in Australia, the study concludes that cash <em>waqf</em> can play a role as a potential vehicle to raise funds to maintain and manage common properties in strata schemes. The concept of <em>waqf, </em>where a certain category of properties is released from the ownership of man permanently while its benefits are dedicated to be used for the betterment of the public (<em>ummah</em>), is now regarded as a catalyst for the third sector economy. While religious reward may motivate Muslim owners or tenants to contribute to the <em>waqf</em> fund, other benefits offered such as financial security, sustainability, accountability and transparency would invite contribution and build trust from both, Muslims and non-Muslims. With adequate awareness, initiatives, and effective marketing of <em>waqf</em> products, the <em>waqf </em>concept would be able to provide a sustainable source of funds to cater to short term and long term maintenance plans for strata schemes.</p> Nor Asiah Mohamad Azlinor Sufian Sharifah Zubaidah Syed Abdul Kader ##submission.copyrightStatement## 2017-12-31 2017-12-31 25 2 229 256 The Right of Private Defense against Non-Accountable Offenders and in Defense of the Chastity of Women under Islamic Law http://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/view/317 <p>The right of self-defense under Islamic law (<em>Shariah</em>) distinguishes between two concepts: private and public defense. In this article, legal and practical manifestations of the contemporary legal issue of private defense in the case of physical assaults made by non-accountable (<em>mukallaf</em>) offenders, such as minors and insane persons are focused. Aside from that, this article also analyses the use of private defense to protect the chastity of a woman. The four conditions to exercise the right of private defense are highlighted. In order to explore the effects of private defense, the significance of keeping the lawful measures and exceeding the right of self-defense are also discussed.</p> Khalid Owaydhah Mohamad Ismail bin Mohamad Yunus ##submission.copyrightStatement## 2017-12-31 2017-12-31 25 2 257 270