IIUM Law Journal https://journals.iium.edu.my/iiumlj/index.php/iiumlj <p>IIUM Law Journal is a double-blind peer-reviewed journal, published twice a year (June and December), 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> commenting on recently published law books. </span></p> <p>&nbsp;</p> <p>&nbsp;<strong>ETHICAL STATEMENT</strong></p> <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> 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> Scrutinising the Developer's Sale and Purchase Agreement by the Purchasers’ Solicitor as required by Section 84 of the Legal Profession Act 1976 - Part II https://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/view/467 <p>This article was conceived by as an object lesson on how Islamic teachings may be incorporated into the Civil law to improve its moral contents. It was written in memory the author’s son Muhammad Zayd bin Bohorudin (1985-2017), advocate and solicitor, and alumnus of the Ahmad Ibrahim Kulliyyah of Laws (‘AIKOL)’. It is a continuation of&nbsp; Part I, published in the IIUM Law Journal Vol. 26 (2) 2018.</p> <p>In this part, the issue of constitutionality of the developer using the purchaser’s property to secure loan is discussed. It furthermore examines the defects and weaknesses in the operation of several clauses in the Act to the purchaser. Other key issues discussed are the criticism on the house purchase loans, the purchase price and other expenses, the post-execution position of the purchaser as beneficial owner, construction issues, and the developer’s first duty, namely to give clean title to purchaser. At a later part of the article, the position of purchasers in relation to the abandonment of the housing estate, foreclosure, private sale and other disasters are scrutinised. Purchasers’ rights pertaining to the completion of the construction, transfer and registration of the house, as well as their right to life vis-à-vis housing matters are assessed.</p> Baharuddeen Abu Bakar Copyright (c) 2019 IIUM Law Journal 2019-06-29 2019-06-29 27 1 1 33 10.31436/iiumlj.v27i1.467 Refining Maritime Boundary Delimitation Methodology: The Search for Predictability and Certainty https://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/view/457 <p>For decades, the maritime boundary delimitation methodology remains uncertain and confusing. This is as a result of the sole reliance on equitable principles, total disregard of the equidistance method in the North Sea Continental Shelf cases and vague provisions of United Nations Convention on the Law of the Sea (UNCLOS) 1982 in particular on the delimitation of the exclusive economic zone and the continental shelf. The main objective of the present article is to investigate how the delimitation methodology could be refined to be more predictable and certain through the flexible interpretation of the conventional law by the decisions of international courts and tribunals. The article first of all traces the codification history of the UNCLOS 1982 in order to ascertain the view of States expressed during the drafting process, which reflected the bitter rivalry between the two camps of equidistance and equitable principles. The article then makes a painstaking analysis of the decisions of international courts and tribunals since 1990s to the most recent one and finds that the equidistance principle has been reinstated as a basic methodology in maritime boundary delimitation, supplemented by relevant circumstances, in order to achieve an equitable solution. The article concludes that the search for predictability and certainty in maritime boundary delimitation has, to some extent, been achieved in the form of the recent three-stage approach, although there are still grey areas where significant uncertainty remains.</p> Abdul Ghafur Hamid Copyright (c) 2019 IIUM Law Journal 2019-06-29 2019-06-29 27 1 35 61 10.31436/iiumlj.v27i1.457 Jurisdiction of Military Courts over Civilian Terrorists in Pakistan: A Miscarriage of Justice https://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/view/415 <p>The jurisdiction of military court was extended over alleged terrorists under the Constitution (Twenty-first Amendment) Act, 2015, in order to permanently wipe out terrorism from Pakistan. The amendment was challenged and petitioners contended that jurisdiction of military courts could not be extended over alleged civilian terrorists because of their peculiar nature. Further, the presiding officer of the military court is a member of the executive, which contradicts the principle of judicial independence, an utmost essential element of safeguarding the due process of law. However, the apex court of Pakistan held that terrorism has a direct nexus with the safety and integrity of Pakistan, therefore, the Parliament was competent to expand the jurisdiction of military courts over civilian terrorists in order to secure the country’s safety and integrity and thus consistent with the recognized criminal justice system. This research critically analyzes the jurisdiction of military courts over civilian terrorists in accordance with the principle of judicial independence. It also identifies the breach of the fundamental rights of alleged civilian terrorists. This study also determines the capability of existing criminal law statutes of ensuring peace whilst maintaining justice for the accused persons. In order to achieve these objectives, this paper adopts a doctrinal research method and carries out an in-depth analysis of the amendments and judgments relating to the issue while also highlighting the constitutionality of the subject matter. Aside from that, juristic literatures and judgments of the superior courts are also analysed. The study concludes that an independent judicial tribunal is absolutely essential in order to ensure that justice is dispensed to the accused. It is further argued that the scope of the military justice system is limited to military personnel, which therefore cannot and should not be expanded over civilian terrorists.</p> Muhammad Hassan Johan Shamsuddin bin Sabaruddin Copyright (c) 2019 IIUM Law Journal 2019-06-29 2019-06-29 27 1 63 88 10.31436/iiumlj.v27i1.415 Discriminatory Customary Practices Against Women’s Rights: An Account Of Intervention Strategies By Southern African Developing States https://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/view/412 <p>Discriminatory customary practices against the protection of gender rights still thrive in many Southern African developing states despite domestic and international legal regimes to prevent them. These practices were borne out of customary inclinations of the patriarchal social system in most African communities, which hold women and the girl-child in perpetual subordination to the male. In other words, the African customary systems wrongly perceive the male gender as being naturally superior to the female. More so, the loopholes in the executive and legislative efforts to combat human rights abuses as well as judicial pronouncements and governmental apathy in eradicating abuses against gender discrimination towards women in the Southern African developing states are apparent. Consequently, discriminatory customary practices continue to thrive despite legislative framework protecting gender rights in the states. The methodology adopted in this paper is a doctrinal approach, which places reliance on legal materials that are enacted and enforced by African Developing states. The article examines international and states laws, norms, institutions, international and national publications and other international legal instruments relating to gender discrimination. Most importantly, the central attention of this study focuses on the discriminatory customary practices against women in the Southern African Developing States. The current study finds that, despite&nbsp; identifiable discriminatory customary practices which are still practised and condoned as being the lifestyle and tradition of groups are criminalized and declared abhorrent by specific domestic legislation of nations, the human rights of the girl-child and women continue to be in chains and fetters. In conclusion, this article advocates increased advocacy, judicial activism and more proactive legislative action that protect women and the girl-child in the Southern African developing states.</p> Barakat Adebisi Raji Grace Ogonda Akolokwu Copyright (c) 2019 IIUM Law Journal 2019-06-29 2019-06-29 27 1 89 120 10.31436/iiumlj.v27i1.412 The Adequacy of Existing Support Systems in Addressing the Issue of Teenage Pregnancies in Malaysia: A Legal Response https://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/view/431 <p>This article examines the adequacy of the current support systems in addressing the issue of teenage pregnancies in Malaysia. This study was conducted primarily through a doctrinal study of existing literature such as articles, journals and reports related to the current issues encountered by the pregnant teenagers. There is also a non-doctrinal method carried out whereby the researchers had conducted fieldwork interviews with the government department, non-government organisations (NGOs) and social activist on the efforts done in addressing the problem. Due to the lack of a specific policy on teenage pregnancies in Malaysia, there have been concerns on issues related to the rights of these teenagers to education during pregnancy; criminal issues on abortion, infanticide and child sexual grooming; child marriages and the lack of support from parents, family members and the society for care, motivation, healthcare and preparation for motherhood among these teenagers. The findings establish the current support system is inadequate to meet the contemporary needs of pregnant teenagers. It is suggested that a comprehensive legal framework for teenage pregnancies in Malaysia needs to be put in place. These can include legislating necessary laws and policies, which can be more effective through integrated services and proper monitoring and enforcement in order to meet the current needs of the targeted group.</p> Aishah Mohd Nor Najibah Mohd Zin Roslina Che Soh Copyright (c) 2019 IIUM Law Journal 2019-06-29 2019-06-29 27 1 121 150 10.31436/iiumlj.v27i1.431 A Polemical Discourse over the Legitimation of Illegitimate Children under Islamic Law https://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/view/413 <p>Muslim jurists unanimously agree that any woman that gives birth to a child, the child is to be attributed to her husband and legitimacy of that child is to be established except in circumstances where the child is disclaimed by the husband through imprecation (li’an). However, dissension over the legitimation of children born out of wedlock has long been recorded in the classical books of Islamic Jurisprudence, although the majority of jurists’ opinion secured an overwhelming preponderance over others. The argument over the legitimation has recently been advanced in order to find a feasible solution to the alarming condition of children born out of wedlock. Interestingly, both opponents and proponents of the legitimation of illegitimate children among Muslim scholars buttress their arguments with the famously narrated hadith “al-<em>walad lil firash</em>” (“The child is traced to the owner of the bed i.e. the legitimate husband).” on the subject matter. Therefore, this article seeks to explore juristic interpretations of the hadith and the rationale behind the scholars’ dissention. This article is a result of a research that has been done through the adoption of a qualitative approach of research, which includes doctrinal and non-doctrinal legal research methodologies. It has been found that attributing a child to his putative father after the acknowledgement does not contravene the fundamental principle of Shariah; it is rather an opinion held by the majority of classical Muslim scholars.</p> Isa Abdur-Razaq Sarumi Azizah bt Mohd Norliah bt Ibrahim Copyright (c) 2019 IIUM Law Journal 2019-06-29 2019-06-29 27 1 151 179 10.31436/iiumlj.v27i1.413 A Social Impact Bond (SIB) : A Shariah Appraisal https://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/view/408 <p>Social Impact Bond (SIB) is a funding mechanism for social projects whereby the payment for the projects is anchored on meeting the outcome metrics, otherwise the investors risk losing their money. The mechanism emerged since 2010 in the United Kingdom and has quickly spread to other parts of the world. In the past, there has not been any popular <em>fatwā</em> on this mechanism from a Sharīʿah point of view.&nbsp; Therefore, this article will examine the funding and payment arrangement and then conduct <em>takyif fiqhi</em> (jurisprudential adaptation) to ascertain the degree of Sharīʿah compliance and determine the most appropriate Islamic contract most suitable under the arrangement. The article adopts qualitative method of research by making in-depth analysis of Islamic contracts including the primary and secondary sources of Islamic law. It also relied on literature on SIB from conventional point of view and internet materials. Major findings of the research show that SIB, whilst its pay-for-success mechanism does not contain <em>ribā</em>, it contains excessive <em>gharar</em>. The excessive <em>gharar</em>, however, was found ineffective to void <em>al-jaʿālah</em>-based SIB and <em>hibah li thawāb</em> which is the second contract similar to SIB. This is because of <em>hājah</em> and element of gratuity respectively.</p> Mahadi Umar Ahmad Yahaya Yunusa Bambale Mahamad Ibrahim Adam Zain Copyright (c) 2019 IIUM Law Journal 2019-06-29 2019-06-29 27 1 181 208 10.31436/iiumlj.v27i1.408 What Makes a Law “Islamic”? A Preliminary Study on the Islamicity of Laws in Malaysia https://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/view/420 <p>There exists a good deal of misunderstanding regarding laws in general. Some laws are categorised as civil or common laws even though their contents are Islamic while others are labelled Islamic but they fail to meet the standards required by Islamic law. This article discusses the characteristics, which make a law, “Islamic”. Based on a content analysis of the revealed sources, the opinion of the majority of Muslim scholars, and the relevant court cases, this study argues that a law does not become Islamic by merely claiming it to have been derived from or somehow related to the divine revelation. It is true that for any law to be Islamic, it must indeed be based upon the divine revelation, and supported by Muslim jurists. Nevertheless, it must also simultaneously be promoting justice for everyone, irrespective of race, religion, gender, social, economic or political status. The law must also be of benefit to all mankind and not only to the Muslims. Finally, the law must fulfil the requirements of MaqāÎid al-sharÊ‘ah (objectives of the law). Judged as such, most of the Malaysian laws may be considered &nbsp;to be Islamic, by nature. These aspects have not been given due attention by many scholars, which leads either to the condemnation of all laws in Malaysia as secular or as un-Islamic. This fact alone justifies the need for a study to provide guidelines to judge the Islamicity of a certain law, which is done herein.</p> Ramizah Wan Muhammad Copyright (c) 2019 IIUM Law Journal 2019-06-29 2019-06-29 27 1 209 232 10.31436/iiumlj.v27i1.420 Consumption of Stem Cell Meat : An Islamic Perspective https://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/view/384 <p>Islam provides specific guidelines for meat production and consumption based on <em>halal</em> and hygiene laws. This study mainly focuses on the permissibility of emerging lab-cultivated meat from the Shari’ah perspective. It also examines the notion and significance of halal food (especially meat) within the purview of Islamic jurisprudence and assesses the position of lab-grown meat for Muslim consumers. This work further highlights the underlying reasons behind the prohibition of Haram food and it investigates the production process of in vitro meat to see whether it is done in accordance with Shari’ah guidelines. Furthermore, the study explores consumer rights to halal meat within the ambit of the Shari’ah. The objective of this research is to explore this new kind of meat and evaluate its legitimacy under Islamic law. This will hopefully create awareness in Muslim consumers and create an interest among researchers. The research adopts doctrinal research where the researcher consults relevant literature in the form of books, research articles and reports on the views of experts in the subject matter. This leads to the basic conclusion that whilst Islam supports the use of technology to improve human lives, such use needs to correspond to the promotion and protection of the <em>Maqasid al-Shari’ah</em>.</p> Mohammad Shahadat Hossain Copyright (c) 2019 IIUM Law Journal 2019-06-29 2019-06-29 27 1 233 257 Fintech in Islamic Finance- Theory and Practice by Umar A. Oseni and S. Nazim Ali (Eds.) https://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/view/469 Sodiq Omoola Copyright (c) 2019 IIUM Law Journal 2019-06-30 2019-06-30 27 1 259 264 10.31436/iiumlj.v27i1.469