Application of Muslim Personal Law in the Kenyan Courts: Problems and Prospects

2021 ◽  
Vol 11 (2) ◽  
pp. 208-231
Author(s):  
Abdulkadir Hashim
Keyword(s):  
Islamic Law ◽  
Common Law ◽  
Legal Issues ◽  
Conflict Of Laws ◽  
Pluralistic Society ◽  
Personal Law ◽  
Religious Courts ◽  
The Way

Abstract This paper examines the application of Muslim personal law in the Kenyan courts. It addresses jurisprudential issues which engage conventional government judges, magistrates and kadhis (Islamic judges). The interaction between the conventional and religious courts has paved the way for a conflict of laws on matters related to Muslim personal law and has led to an interesting scenario of constructive conversation and criticism that in turn has set the stage for an emerging comparative jurisprudence within a pluralistic society. Factors which contribute toward conflicts include wholesale adoption of Common Law and Islamic law notions and exemption clauses in statutes. To overcome the challenges facing the kadhis’ courts and the application of Muslim personal law in Kenya, the paper proposes the adoption of a progressive comparative jurisprudential approach in responding to emerging legal issues facing Muslim litigants in the Kenyan courts.

Expanding a Formal Role for Islamic Law in the Indonesian Legal System: The Case of Mu’Amalat

2007 ◽  
Vol 23 (1) ◽  
pp. 249-270
Author(s):  
Alfitri
Keyword(s):  
Legal System ◽  
Islamic Law ◽  
Islamic State ◽  
Specific Question ◽  
Legal Code ◽  
Positive Law ◽  
Islamic Jurisprudence ◽  
Personal Law ◽  
Religious Courts

Contemporary conflicts over efforts to expand the role of Islamic law in the national legal system of Indonesia are so intense that they undermine reasoned public debate about this question. They are part of a long-standing polemic, not only about the role of Shariah in Indonesia generally but about the specific question of whether the Jakarta Charter, which references obligations to obey Islamic law, should be restored as part of the Constitution. This article is an attempt to revive the neglected academic discourse on the role of Islamic jurisprudence in Indonesian law, and to move beyond the confused polemics to a thoughtful consideration of where Islamic law fits in a non-Islamic state such as Indonesia. Because Indonesia is a secular state, the Shariah as a whole is not enforced by the state, but the Shariah has a significant meaning for Muslims in Indonesia because it provides the norms distinguishing the obligatory and recommended from those actions which are neutral, disapproved and prohibited in Muslims' lives. Moreover, some elements of Islamic jurisprudence in personal law have been absorbed into positive law in Indonesia through the decisions of religious courts, which have existed since the Dutch colonialism,3 as currently regulated by Law No. 7/1989. The Compilation of Islamic Law No. 1/1991 essentially functions as the legal code for all Muslims who must resort to the religious courts for the adjudication of disputes involving marriage, divorce, inheritance and waqf. Thus, consideration of the propriety of attempts to extend Islamic law to matters of property and of contract is appropriate at this time.

scholarly journals PENGUATAN KERANGKA HUKUM TERKAIT PENYELESAIAN SENGKETA PASAR MODAL SYARIAH PADA PENGADILAN AGAMA / Strengthening Legal Framework For Sharia Capital Market Dispute Resolution In Religious Court

2016 ◽  
Vol 5 (3) ◽  
pp. 351
Author(s):  
Mul Irawan
Keyword(s):  
Law Enforcement ◽  
Dispute Resolution ◽  
Capital Market ◽  
Islamic Law ◽  
Preventive Measures ◽  
Rapid Development ◽  
Legal Framework ◽  
Point Of View ◽  
Legal Issues ◽  
Religious Courts

Dari sudut pandang syariah, pasar modal adalah produk muamalah. Transaksi dalam pasar modal diperbolehkan sepanjang tidak terdapat transaksi yang bertentangan dengan ketentuan yang telah digariskan oleh syariah. Perkembangan pasar modal syariah di Indonesia yang sedemikian pesat, akan turut meningkatkan jumlah dan ragam potensi masalah hukum yang mungkin terjadi di pasar modal syariah. Setidaknya, diperlukan dua upaya hukum dalam penguatan kerangka hukum pasar modal syariah, yaitu pertama, upaya preventif yang dapat meminimalisir terjadinya masalah-masalah hukum, seperti perlunya pembentukan regulasi yang merujuk kepada syariah Islam agar tercipta kestabilan dan suasana kondusif bagi penegakan hukum di pasar modal syariah, Kedua, upaya penyelesaian sengketa pasar modal syariah dilakukan melalui dukungan terhadap pengadilan agama sebagai satu-satunya lembaga peradilan yang memiliki kewenangan absolut dalam menyelesaikan perkara perdata pasar modal syariah, perlunya peningkatan kompetensi hakim dan aparatur pengadilan agama serta perlunya pedoman, yurisprudensi dan referensi sebagai rujukan dalam penyelesaian sengketa pasar modal syariah di Indonesia. According to the sharia point of view, sharia capital market is muamalah product. Capital market transactions are allowed as long as it does conflict with the terms outlined by sharia. The rapid development of Indonesia sharia capital market results in the increasing number and variety of potential legal problems. It takes two legal efforts in strengthening the legal framework for sharia capital market. First, preventive measures to minimize the legal issues occurrence, such as the establishment of islamic law regulations in order to produce stability and good atmosphere of sharia capital market law enforcement. Second, efforts in sharia capital market mediation which is done through support the religious court as the only judicial institutions having the absolute authority in resolving sharia capital market civil cases. We need to increase the judges and religious courts officials competencies, make guidelines, jurisprudence and the references of sharia capital market dispute resolution in Indonesia.

scholarly journals Interpretation of The Phrase “Coercion” in The Compilation of Islamic Law as Reasons for Cancellation of Marriage

2021 ◽  
Vol 15 (2) ◽  
pp. 271-288
Author(s):  
Neng Widya Millyuner ◽  
Adi Nur Rohman ◽  
Elfirda Ade Putri
Keyword(s):  
Islamic Law ◽  
Legal Issues ◽  
Third Party ◽  
Legal Research ◽  
Conceptual Approach ◽  
Sociological Approach ◽  
Legal Implications ◽  
Legal Consequence ◽  
Religious Courts

Marriage is a common thing in society with ubudiyyah elements in it. However, legal issues often accompany the sanctity of the marriage bond itself, such as the cancellation of a marriage due to an element of coercion from a third party. Article 71 Compilation of Islamic Law (KHI) states that one of the reasons for being able to apply for a marriage cancellation is because of coercion when the marriage took place. The purpose of this study is to analyze the meaning of the phrase "coercion" as a reason for annulment of marriage and its accompanying legal implications. This type of research is classified as normative-empirical legal research using a statutory approach and a conceptual approach plus a sociological approach as a tool. This research refers to a variety of primary, secondary and tertiary legal materials compiled and traced through literature studies and interviews with judges of the Religious Courts. The legal materials that have been collected are then analyzed descriptively and analytically. The results showed that what is meant by coercion in marriage is a marriage that occurs not because of one's own will or feels that he is under threat. As a form of legal consequence, annulment of a marriage by force is different from divorce, where the marriage bond that occurred before the breakup of the marriage is considered never to have occurred.

EFEKTIVITAS PELAKSANAAN PERATURAN PENCATATAN PERCERAIAN DI KANTOR URUSAN AGAMA

2020 ◽  
Vol 6 (1) ◽  
pp. 1-15
Author(s):  
Juriyana Megawati Hasibuan Dan Fatahuddin Aziz Siregar
Keyword(s):  
Islamic Law ◽  
The State ◽  
Judicial Process ◽  
Positive Law ◽  
State Administration ◽  
Shipping Costs ◽  
The Status ◽  
Happy Marriage ◽  
Religious Courts ◽  
Laws And Regulations

Marriage is a sacred bond which is ideally only held once in a lifetime. Both Islamic law and positive law require an eternal happy marriage. To support this the Koran proclaims marriage as mitsaqan galiza. The marriage is then registered in the state administration. In line with this, the laws and regulations are formulated in such a way as to make divorce more difficult. However, when there are acceptable reasons and due to coercive conditions, divorce can be done through a judicial process. The divorce must then be registered by taking certain procedures. The court delivered the notice and sent a copy of the decision to the marriage registrar to file the divorce properly. The implementation of this divorce record was not effective. The separation of the Religious Courts Institution from the Ministry of Religion has become a factor that causes the registration task not to be carried out. The loss of the obligation to submit a copy of the decision on the judge's ruling caused the recording to be constrained. The unavailability of shipping costs also contributed to the failure to register divorce. Even though there is a threat to the Registrar who neglects to deliver a copy of the verdict, unclear sanctions make this ineffective. As a result of the lack of recording of divorce, the status of husband and wife becomes unclear and opens opportunities for abuse of that status.

Forensic Evidence in Proving Crimes: Exploring the Legal Frameworks of Sharīʿah Bukti Forensik Bagi Membuktikan Jenayah: Menerokai Rangka Kerja Guaman Sharīʿah

2016 ◽  
Vol 13 (1) ◽  
pp. 220-247
Author(s):  
Sayyid Mohammad Yunus Gilani ◽  
K. M. Zakir Hossain Shalim
Keyword(s):  
Legal System ◽  
Islamic Law ◽  
Common Law ◽  
Legal Framework ◽  
New Method ◽  
Criminal Investigation ◽  
Forensic Evidence ◽  
Administration Of Justice ◽  
Legal Frameworks

AbstractForensic evidence is an evolving science in the field of criminal investigation and prosecutions. It has been widely used in the administration of justice in the courts and the Western legal system, particularly in common law. To accommodate this new method of evidence in Islamic law, this article firstly, conceptualizes forensic evidence in Islamic law.  Secondly, explores legal frameworks for its adoption in Islamic law. Keywords: Forensic Evidence, legal framework, Criminal Investigation, Sharīʿah.AbstrakBukti forensik adalah sains yang sentiasa berkembang dalam bidang siasatan jenayah dan pendakwaan. Ia telah digunakan secara meluas dalam pentadbiran keadilan di mahkamah dan sistem undang-undang Barat, terutamanya dalam undang-undang common (common law). Untuk menampung kaedah pembuktian baru ini dalam undang-undang Islam, artikel ini, pertamanya, konseptualisasikan bukti forensik dalam undang-undang Islam. Kedua, ia menerokai rangka kerja undang-undang untuk penerimaannya dalam undang-undang Islam.Kata Kunci: Bukti Forensik, Rangka Kerja Guaman, Siasatan Jenayah, Sharīʿah.

Authority by Allusion

2017 ◽  
Author(s):  
Rebecca Skreslet Hernandez
Keyword(s):  
Social Media ◽  
Fifteenth Century ◽  
Islamic Law ◽  
Religious Institutions ◽  
Political Arena ◽  
Modern Era ◽  
The Way

The final chapter brings the discussion of al-Suyūṭī’s legal persona squarely into the modern era. The discussion explores how contemporary jurists in Egypt use the legacy of the great fifteenth-century scholar in their efforts to frame their identity and to assert authority as interpreters and spokesmen for the Sharīʿa in a political arena that is fraught with tension. In the midst of Mursī’s embattled presidency, leading scholars at Egypt’s state religious institutions rushed to news and social media outlets to affirm their status as representatives of “orthodoxy” and to distance themselves from more extreme salafī trends that threaten to change the way Islamic law is practiced in the modern Egyptian state. It is striking how closely the image of the moderate Sunni, Sufi-minded, theologically sound scholar grounded in the juristic tradition (according to the accepted legal schools) fits with the persona that al-Suyūṭī strove so tenaciously to construct.

scholarly journals Laws and Emerging Technologies

Laws ◽  
2021 ◽  
Vol 10 (2) ◽  
pp. 46
Author(s):  
Esther Salmerón-Manzano
Keyword(s):  
Information Technologies ◽  
New Technologies ◽  
Legal Issues ◽  
The Other ◽  
Special Issue ◽  
Legal Challenges ◽  
The World ◽  
Huge Impact ◽  
New Challenges ◽  
The Way

New technologies and so-called communication and information technologies are transforming our society, the way in which we relate to each other, and the way we understand the world. By a wider extension, they are also influencing the world of law. That is why technologies will have a huge impact on society in the coming years and will bring new challenges and legal challenges to the legal sector worldwide. On the other hand, the new communications era also brings many new legal issues such as those derived from e-commerce and payment services, intellectual property, or the problems derived from the use of new technologies by young people. This will undoubtedly affect the development, evolution, and understanding of law. This Special Issue has become this window into the new challenges of law in relation to new technologies.

Global PPPs and the Choice of Law Challenge

2020 ◽  
Vol 8 (1) ◽  
pp. 79-115
Author(s):  
Yock Lin Tan
Keyword(s):  
Common Law ◽  
Public And Private ◽  
Choice Of Law ◽  
Conflict Of Laws ◽  
The Public ◽  
Legal Structure ◽  
Foreign State ◽  
Relational Distance ◽  
Belt And Road ◽  
The Belt And Road

Abstract Positing the public-private partnership as an important optional legal structure in the delivery of infrastructural services in the Belt and Road Initiative (BRI), this exploratory article discusses the crucial, but formidable, problems of risks in management or governance. It considers whether traditional common law conflict of laws as applied in Singapore courts can contribute principles that recognize shared expectations and commitment or foster solidarity, mutuality, and trust—values regarded as essential to their effective resolution. Arguing that traditional conflicts distinctions between State and non-State law as well as between public and private law are unhelpful in this respect, it concludes that modern critical developments contain promising prospects for developing such principles. These principles will predicate a role for foreign State substantive public policies and, if there is relevant ‘relational distance’, implement them in BRI choice-of-law disputes, thereby reconciling private efficiency and public accountability beyond borders.

Malaysia: Religious Pluralism and the Constitution in a Contested Polity

2012 ◽  
Vol 4 (2-3) ◽  
pp. 356-385 ◽  
Author(s):  
Andrew Harding
Keyword(s):  
Islamic Law ◽  
Religious Conversion ◽  
Common Law ◽  
Islamic State ◽  
Colonial Era ◽  
Federal Constitution ◽  
Highly Sensitive ◽  
Plural Society ◽  
Muslim Majority ◽  
Historical Developments

Malaysia has a classically plural society with a Malay/ Muslim majority and a legal system which, for historical reasons, is bifurcated between the common law and Islamic law. It also has a colonial-era federal constitution under which Islam is a state issue. Disputes concerning religion are both many and divisive. They are dealt with mainly in constitutional terms, especially in debates about the notion of an Islamic state, in light of Article 3 and the enshrinement of an official religion and in litigation. The latter is rendered complex by the separation of Islamic from common law jurisdiction in 1988, a fact that has given rise to highly sensitive and troubling litigation involving, especially, religious conversion in Lina Joy (2007). This article traces historical developments relating to religion and the law, and finds cause for some optimism that religious divides can be bridged by constitutional means, in light of recent judicial responses and evolving debates about the constitutional position of Islam.

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