Application of law of evidence to Islamic banking with special reference to Malaysia

2017 ◽  
Vol 10 (4) ◽  
pp. 503-518 ◽  
Author(s):  
Aishath Muneeza
Keyword(s):  
Special Reference ◽  
Expert Opinion ◽  
Design Methodology ◽  
Islamic Law ◽  
Case Law ◽  
Islamic Banking ◽  
Content Type ◽  
Application Of Law ◽  
The Law ◽  
Law Of Evidence

Purpose This research aims to deal with the law of evidence invoked in Islamic banking cases reported in Malaysia from 1983 to 2015 and determine whether the invoked provisions of the statute in the case law have any conflicts with Islamic law that are threatening the development of Islamic banking in Malaysia. Design/methodology/approach The methodology used in this research is assessing the implication by studying the provisions of the law of evidence that has been invoked in the reported case law. Findings It is evident from this research that following are the evident conflicts found in the Evidence Act 1950. In this arena, the following changes are significant for sustaining Islamic banking in Malaysia. Expert opinion under Section 45 of the Evidence Act 1950 should be amended such that in Islamic banking, under this Act, expert opinion can be sought by the court. The rule and exceptions of parol evidence in Sections 91 and 92 of the Evidence Act 1950 need to be amended such that in Islamic banking matters, anything that is contrary to Sharicah is mentioned in the contract; this amendment will be an exception to the parol evidence rule on the grounds that the written Islamic contract can be amended or set aside depending on the circumstances of the case. Originality/value It is anticipated that this research will assist jurisdictions to understand that even adjective laws applicable to Islamic banking will be harmonized with Islamic law. This is because the prefix Islam attached to the term banking is not merely a namesake, but it means more than that, i.e. all aspects of Islamic banking will be consistent with Islamic law.

scholarly journals Compensation for harm caused by nuclear installations: what’s the damage?

2018 ◽  
Vol 10 (1) ◽  
pp. 17-35
Author(s):  
Robert Lee ◽  
Radek Stech
Keyword(s):  
Design Methodology ◽  
Case Law ◽  
Personal Injury ◽  
Eu Law ◽  
Legal Research ◽  
Property Damage ◽  
Content Type ◽  
The Law ◽  
The Impact

Purpose This paper aims to explain the changes to the liability regime for nuclear installations before reviewing the traditional heads of damage under the 1965 Act. It argues that while there is some welcome clarification of what amounts to an “occurrence” in the purposes of the 1965 Act, disappointingly, little has been done to clarify how concepts of personal injury and property damage under the Act sit alongside traditional tort notions leaving the law highly dependent on earlier, but not always consistent, case law. The paper then goes on to consider the impact of the new categories of compensation, introduced by the Order, evaluating the extent to which these draw upon EU law structures for environmental impairment liability. Again, it questions whether this approach will achieve sufficient clarity and certainty. Design/methodology/approach This paper is a desk-based legal research. Findings This study is a discussion of statutory material and case law. Originality/value This paper is a first in-depth treatment of changes to liability principles in the Nuclear Installations Act 1965.

scholarly journals Reflection of Maqāṣid al-Sharī'ah in the classical Fiqh al-Awqāf

2020 ◽  
Vol 27 (2) ◽  
pp. 79-90
Author(s):  
Mohammad Abdullah
Keyword(s):  
Special Reference ◽  
Design Methodology ◽  
Analogical Reasoning ◽  
Islamic Law ◽  
Distillation Process ◽  
Analysis Method ◽  
Content Type ◽  
Modern Context ◽  
Historical Contribution ◽  
Practical Implications

PurposeThis paper aims to analyse the Sharī'ah premises of classical waqf doctrines followed by critically analysing the framework of waqf jurisprudence (fiqh al-awqāf) from a Maqāṣid al-Sharī'ah (the higher objectives of Islamic law) perspective. The objective of examining the jurisprudential framework of waqf from a maqāṣid perspective is to contextualise the scope of dynamism and innovation in the modern waqf structure.Design/methodology/approachFor examining the jurisprudential aspects of classical fiqh al-awqāf with a special reference to Maqāṣid al-Sharī'ah, the paper analyses the classical waqf books and treatises from the four Sunni schools of jurisprudence by employing a textual analysis method.FindingsThe paper finds that the key constituents of maqāṣid are interwoven in the classical discourse of waqf rulings. It finds that in deriving the principles of waqf, the jurists ensured that the essentialities of Maqāṣid al-Sharī'ah are subtly intermingled with the necessary components of fiqhī principles. Deconstructing the applied analogical reasoning of the classical jurists in deriving the waqf rulings, this paper provides recommendations for maqāṣid-oriented application of waqf in the modern context.Research limitations/implicationsThis study does not cover either the historical contribution of waqf among the Muslim societies nor does it touch on the empirical aspects of modern waqf. Rather, the focus of the study is limited to analysing the classical jurisprudential rulings of waqf and their distillation process from a Maqāṣid al-Sharī'ah perspective. The study has good implication for modern awqāf, which need to be created, managed and directed in the spirit of Maqāṣid al-Sharī'ah.Practical implicationsThe key objective of adopting the maqāṣid framework for the analysis of fiqh al-awqāf in its classical permutations is to learn how to utilise the maqāṣid approach as a baseline for the deduction of new waqf rulings in a contextualised term.Originality/valueThe novelty of the paper lies in its examination of the classical waqf rulings distillation process, and the cogent intersection of Maqāṣid al-Sharī'ah with the principles of fiqh. By delving into the Sharī'ah premises of classical waqf jurisprudence through the lens of maqāṣid, the paper adds an original value and fills an existing gap in the available literature.

scholarly journals Liability of employers for third party harassment in the UK

2020 ◽  
Vol 63 (1) ◽  
pp. 147-156
Author(s):  
Sam Middlemiss
Keyword(s):  
Trade Unions ◽  
Design Methodology ◽  
Research Study ◽  
Case Law ◽  
Third Party ◽  
Content Type ◽  
The Law ◽  
The Uk ◽  
Practical Implications

Purpose This paper aims to summarise current law dealing with third party harassment in workplaces in the UK and make recommendations for improving law. Design/methodology/approach Review of case law, articles etc. Findings It is found that the current law is inadequate and unclear, and in dire need of reform. Research limitations/implications This research study will be useful for trade unions and employers and employees and workers. Practical implications This study supports the cause of reform of the law. Originality/value To the best of the author’s knowledge, this study is an original piece of work.

Banks in Kenya and anti-money laundering obligations: the conflicts of interests arising

2020 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Constance Gikonyo
Keyword(s):  
Money Laundering ◽  
Design Methodology ◽  
Relevant Literature ◽  
Case Law ◽  
Conflicts Of Interests ◽  
Content Type ◽  
Contractual Relationship ◽  
Proceeds Of Crime ◽  
The Law ◽  
Scholarly Contribution

Purpose Kenya is vulnerable to trade-based and other forms of money laundering. Banks are prime targets for money launderers since they can facilitate the processes of placement, layering and re-integration. Consequently, banks are key in fulfilment of the prohibitory and preventative anti-money laundering (AML) strategies. In executing these obligations, the potential for clashes between the bank following the law and obeying its contractual duties to the client arises. Hence, this paper aims to examine these potential conflicts of interests. Design/methodology/approach The examination is based on reviewing relevant literature, case law and analysing the Proceeds of Crime and AML Act and its attendant regulations. These form the core of the AML regime imposing obligations on banks. Findings The analysis indicates the provisions are robust and can assist in addressing money laundering risks faced by banks. Nonetheless, there are identified gaps since the primary AML legislation does not provide guidance on various issues. This can potentially lead to banks facing litigation from customers for failure to honour its duty of secrecy and customer’s instructions. Originality/value The paper seeks to make a practical and scholarly contribution in considering the issue and possibly filling this gap through advocating for statutory amendment. Subsequently, positive review of the law will help strike a balance between interference in the banker-customer contractual relationship and facilitation of banks fulfilling their prohibitory and enforcement of AML obligations.

Employment references and the law

2014 ◽  
Vol 22 (7) ◽  
pp. 39-42
Author(s):  
Engin Mustafa
Keyword(s):  
Design Methodology ◽  
Case Law ◽  
Risk Averse ◽  
Value Judgments ◽  
England And Wales ◽  
Content Type ◽  
The Law ◽  
Resource Specialists ◽  
Practical Implications ◽  
Minimal Information

Purpose – This paper aims to examine whether employers are bound to provide references on former employees and the kinds of information they should contain. Design/methodology/approach – It arrives at a set of conclusions through considering case law in England and Wales. Findings – It explains why writing a reference is increasingly the responsibility of human-resource specialists in an organization. Practical implications – It reveals that employers have a number of options, the choice between which will depend upon the organization’s aversion to risk and its balancing of the obligations felt to employees and their future employers. Social implications – It considers that, in an increasingly risk-averse culture, more and more organizations are providing minimal information in references on former employees and avoiding value judgments. Originality/value – It considers the state of the law in England and Wales as regards writing references on former employees.

Formation of contracts for the international sale of goods under Korean law and the CISG

2017 ◽  
Vol 21 (3) ◽  
pp. 208-223
Author(s):  
Byung Mun Lee
Keyword(s):  
Comparative Study ◽  
Design Methodology ◽  
Case Law ◽  
The Other ◽  
Basic Question ◽  
Content Type ◽  
International Sale Of Goods ◽  
The Comparative Study ◽  
International Sales ◽  
Insight Into

Purpose The purpose of this paper is to describe and analyze the rules on the formation of contracts under Korean law and the Contracts for the International Sale of Goods (CISG) in a comparative way and introduce the relevant proposed rules under the Amendment Draft of the Korean Civil Code (KCC). In addition, it attempts to compare and evaluate them in light of the discipline of comparative law. Design/methodology/approach In order to achieve the purposes of the study, it executes a comparative study of the rules as to the formation of contracts of the CISG, Korean law and the Amendment Draft of the KCC. The basic question for this comparative study is placed on whether a solution from one jurisdiction is more logical than the others and to what extent each jurisdiction has responded to protect the reasonable expectations of the parties in the rules as to the formation of contracts. Findings The comparative study finds that most of the rules under the CISG are quite plausible and logical and they are more or less well reflected in the proposals advanced by the KCC amendment committee. On the other hand, the other rules under the CISG which have brought criticisms in terms of their complexity and inconsistent case law invite us their revision or consistent interpretation. The drawbacks of the CISG have also been well responded in the Amendment Draft of the KCC. Nevertheless, it is quite unfortunate that the Amendment Draft of the KCC still has a rule that regards any purported performance with non-material alteration of the terms of an offer as an acceptance. Originality/value This study may provide legal and practical advice to both the seller and the buyer when they enter into a contract for international sales of goods. In addition, it may render us an insight into newly developed or developing rules in this area and show us how they interact with each other. Furthermore, it may be particularly useful in Korea where there is an ongoing discussion for revision of the KCC.

Revitalising Waqf (endowment) lands for agribusiness: potentials of the anchor company models

2021 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Norfaridah Ali Azizan ◽  
Amirul Afif Muhamat ◽  
Sharifah Faigah Syed Alwi ◽  
Husniyati Ali ◽  
Amalia Qistina Casteneda Abdullah
Keyword(s):  
Household Income ◽  
Design Methodology ◽  
Potential Role ◽  
Islamic Law ◽  
Living Condition ◽  
Previous Literature ◽  
Content Type ◽  
Muslim Countries ◽  
The Right

PurposeWaqf (endowment) lands constitute as among the highest types of waqf (endowment) properties in Malaysia; yet it is still unable to reach its maximum potential due to various challenges such as capital, location, legal and administrative issues. Therefore, this study intends to explore these issues by focussing on the two states in Malaysia (Selangor and Perak) that have fertile lands but different management authorities.Design/methodology/approachThere were series of interviews that had been conducted with ten (10) key informants who are experts and practitioners in the areas of Shariah (Islamic law), farming, agribusiness, land management and waqf.FindingsFindings exhibit that constraints and challenges that had been highlighted in the previous literature still exist (although some improvements had been made), but there is emerging theme that the study intends to highlight which is on the needs to secure market for the agribusiness produce and the potential role of anchor company in the agribusiness. It is pertinent that for agribusiness to thrive, selecting the right anchor company that has the capacity to address the challenges is necessary. This study posits two anchor company models (Waqf Trustee-Anchor Company and Waqf Trustee-Anchor Company-Community Farmers) that can be applied for agribusiness on the waqf lands.Research limitations/implicationsThis study is based on the Malaysia's context influenced by specific country's features. Nevertheless, such findings can still be used as reference or benchmark by other endowment trustees in other countries especially for the Muslim countries as well as the non-Muslim countries that have significant Muslim populations.Social implicationsThe suggested models have potentials to improve the living condition of the B40 (below 40% household income) in Malaysia because the models encourage their participation in the agribusiness activities.Originality/valueThis study focusses on the agribusiness, which is rarely being given attention in previous literature in the context of endowment lands. Therefore, this article bridges the literature gap and at the same time attempts to provide suggestion to address the pertinent issue – the underutilised endowment lands.

Drawing ethical mentation in Islamic banks; addressing operational lines heterogeneity with special reference to Al-Ghazali’s ethical philosophy

2021 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Shinaj Valangattil Shamsudheen ◽  
Saiful Azhar Rosly ◽  
Syed Abdul Hamid Aljunid
Keyword(s):  
Decision Making ◽  
Special Reference ◽  
United Arab Emirates ◽  
Partial Least Square ◽  
Islamic Finance ◽  
Islamic Banking ◽  
Islamic Banks ◽  
Content Type ◽  
Ethical Philosophy ◽  
Divine Knowledge

Purpose This study aims to examine the decision-making behaviour of Islamic banking practitioners of the United Arab Emirates with special reference to the operational line heterogeneity by employing factors that are religious in nature such as intellect, satanic force and divine knowledge as encapsulated in al-Ghazali’s ethical philosophy. Design/methodology/approach A total of 337 samples were collected from the Islamic banking practitioners in the United Arab Emirates using a purposive sampling technique, and the empirical analysis was conducted with the measures of model fit and bootstrapping technique using Partial least square Structural equation modelling and multi-group analysis. Findings The empirical findings reveal that the dedicated use of intellect in making decisions related to ethical issues where desires and emotions tend to overwhelm reason and human choices. While divine knowledge is found ineffective guidance of the intellect, the element of satanic force is found significantly impacting decision-making. As the lack of religious consciousness is evident among respondents, higher exposure to operational risk is expected. These findings were found identical across the Islamic banking practitioners in different lines of operations. Research limitations/implications The span of the study is limited to a single country. Future studies are recommended to replicate the study to more markets where the share of Islamic finance is significant. Practical implications Findings of the study highly suggest respective authorities of Islamic financial institutions to intensify the capacity-building programs on the foundation of faith which includes Islamic thought and worldview, to enhance the corporate ethical decision-making. Moreover, equal importance should be given to all the banking practitioners regardless of line of business operations. Originality/value With undue emphasis is given to the juristic (fiqh) aspects of Shariah compliance in the Islamic banking and finance industry, less has been attempted to explore its ethical dimension (akhlaq) in the compliance parameters that leave a relatively large gap to address prevailing unethical practices in Islamic finance institutions. Findings from this study can be useful as a warning to the Islamic banking firms to enhance the sense of God-fearing and improve existing measures in the organisation in mitigating operational risks that may arise from people or system and consequently ensure the smooth governance of the Islamic banks.

Unfair dismissal in the Mauritius context: a comparative study

2018 ◽  
Vol 60 (6) ◽  
pp. 1299-1312
Author(s):  
Ambareen Beebeejaun
Keyword(s):  
Design Methodology ◽  
Research Work ◽  
Procedural Fairness ◽  
Content Type ◽  
Monetary Compensation ◽  
Unfair Dismissal ◽  
The Subject ◽  
The Law ◽  
Employment Rights ◽  
Practical Recommendations

Purpose The purpose of this study is to critically analyse the concept of unfair dismissal and to assess the extent to which the Employment Rights Act 2008 is affording protection to employees in Mauritius. The purpose of this study is to also demonstrate that as employees form an integral part of their workplace, their employment cannot be terminated without substantive and procedural fairness. The paper will provide some recommendations to cater for loopholes in existing Mauritius employment legislations. Design/Methodology/Approach To critically examine the topic, the black letter approach is adopted to detail legislations and judgments of courts on the subject matter. A comparative analysis with some other jurisdictions’ employment legislations is also carried out to define, explain and examine the concepts of dismissal, substantive causes such as misconduct and procedural fairness. Findings From the methodologies used, it is found that a substantial reason is not sufficient to conclude whether a dismissal is fair. The law of unfair dismissal has introduced some procedural safeguards to protect the employee from being unfairly and unjustifiably dismissed. The procedural requirements act as guidelines to employers and if they are not followed properly, the dismissal will be unfair. Unfair dismissal needs to be accompanied by remedies from employers, and monetary compensation has been found to be the most appropriate remedy. Originality/Value This paper is amongst the first research work conducted in Mauritius that compares the law of unfair dismissal and its implications with the laws of England and South Africa. The study is carried out with a view to provide practical recommendations in this area of employment law to the relevant stakeholders concerned.

Mental capacity and deprivation of liberty: the Law Commission’s consultation paper

2015 ◽  
Vol 17 (5) ◽  
pp. 331-334 ◽  
Author(s):  
Tim Spencer-Lane
Keyword(s):  
Design Methodology ◽  
Service Users ◽  
Consultation Process ◽  
Content Type ◽  
Opportunity To Respond ◽  
Future Paper ◽  
The Law ◽  
Practical Implications ◽  
Consultation Paper ◽  
Law Commission

Purpose – The purpose of this paper is to introduce the readership to the consultation being held by the Law Commission concerning proposed revisions to the Deprivation of Liberty Safeguards (DoLS). Design/methodology/approach – Discussion of the consultation being held by the Law Commission concerning proposed revisions to the DoLS. Findings – These are as yet unknown as the consultation period is ongoing – it is planned that a future paper will examine the findings and recommendations from the consultation process. Practical implications – There has been criticism of the DoLS since their introduction in 2009. A new scheme provides the opportunity to respond to some of the criticisms and to develop more appropriate processes. The paper invites readers to take part in the consultation process and to respond to the proposals that have been developed. Social implications – A new and more appropriate scheme would be beneficial for service users and families/caregivers. Originality/value – This is the first opportunity for a revision to the DoLS scheme and introduction of the proposed scheme and the consultation process to the readership is highly appropriate and valuable to the Journal.

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