THE APPLICABILITY OF THE UṢÛL AL-FIQH PRINCIPLE “ISTIṢHŪB” TO THE PRESUMPTION OF DEATH OF A MISSING PERSON IN ISLAMIC LAW OF SUCCESSION AND MALAYSIAN LAW

Abstract

The rights of inheritance do not arise until and unless the death of the praepositus and the survival of legal heirs are legally established. These two conditions may be easy to ascertain, but are in fact problematic when dealing with the case of uncertainty of death such as a missing person, because the death is not known. The ascertainment of death and the survival of legal heirs in a missing person case is extremely important because it determines whether any rights of inheritance exist or not. This article seeks to examine the principle of Uṣûl al-Fiqh “Istiṣḥūb”and the approaches undertaken by Muslim scholars to ascertain the related rights of succession involving missing persons. The article analyzes the relevant legal aspects of the applicable laws in Malaysia pertaining to the succession involving a missing person either as a praepositus or a legal heir. It also examines the jurisdictional conflict between the civil court and the Syariah court in Malaysia pertaining to the presumption of missing person’s death in relation to Islamic law of succession.