scholarly journals Position of Fatwa in The Constitution: A Legal Analysis

2021 ◽  
Vol 29 (4) ◽  
pp. 2171-2188
Author(s):  
Mohd Kamel Mat Salleh ◽  
Adibah Bahori ◽  
Mohamad Azhan Yahya
Keyword(s):  
Document Analysis ◽  
Legal Authority ◽  
Legal Analysis ◽  
Legal Decisions ◽  
Legal Power ◽  
Legal Provisions ◽  
Federal Constitution ◽  
Legal Position

Fatwas in Malaysia seems to be existing without legal power and value since they are not mentioned literally in the Federal Constitution. Accordingly, there has been a perception of fatwa institutions issuing fatwas without legal authority to bind Muslims to certain legal decisions and views. Hence, this study is to clarify that fatwas are valid and recognized as part of the legal reference in Malaysia. More importantly, this paper refutes the claim that fatwa is unconstitutional in terms of its legal position. Additionally, this study intends to clarify that the philosophy of federalism practiced in Malaysia is solid evidence that fatwas are indeed an authoritative source of law in Malaysia. This study is conducted qualitatively using document analysis instruments with reference to the Federal Constitution and legal provisions practiced in Malaysia. Investigation of this study found that fatwa and its institutions in the country are valid according to Malaysian law. However, they are not mentioned literally in the Constitution, particularly fatwa authority that involves state jurisdiction in Islamic affairs. Moreover, this paper is highly significant to highlight the validity of fatwa from the Constitution perspective and further support the authority and credibility of its institutions according to Malaysian law.

scholarly journals LEGAL ANALYSIS OF THE REJECTION REGISTRATION INTERFAITH MARRIAGES

2020 ◽  
Vol 4 (2) ◽  
pp. 110
Author(s):  
Peni Rinda Listyawati ◽  
Indah Setyowati ◽  
Latifah Hanim
Keyword(s):  
Secondary Data ◽  
Legal Analysis ◽  
Data Types ◽  
Interfaith Marriage ◽  
Positive Law ◽  
Legal Provisions ◽  
Religious Law ◽  
Interfaith Marriages ◽  
Legal Position ◽  
Collection Methods

The purpose of this journal is to find out about the problem of the legal position of interfaith marriage which shows that interfaith marriage is prohibited or normatively not regulated and is not recognized by the state and cannot be registered based on positive law. Research method uses a normative juridical approach, secondary data types, data collection methods that are carried out by literature, and the internet. While the data analysis method was analyzed descriptively qualitatively. The research results obtained indicate that the legal provisions of marriage, either express or implicitly, do not regulate the granting of marriage between followers of different religions. This is because marriage is prohibited between two people who have a relationship which by their religion or other regulations prohibited from marriage does not mean that the provisions in Islam prohibit interfaith marriage, so interfaith marriage is prohibited so that marriages that are carried out under religious law are not legitimate.

scholarly journals Who Is a Native of Sabah? A Legal Analysis

2021 ◽  
Vol 6 (10) ◽  
pp. 558-566
Author(s):  
Rafidah@Malissa Binti Salleh ◽  
Lenny James Matah ◽  
Ku Mohd Amir Aizat Ku Yusof ◽  
Hershan@Ray Herman
Keyword(s):  
The State ◽  
Legal Analysis ◽  
Special Position ◽  
Legal Provisions ◽  
State Constitution ◽  
Federal Constitution ◽  
Definition Of ◽  
Sabah And Sarawak

Article 161A of the Federal Constitution provides for the special position of natives of Sabah and Sarawak. Who are the natives of Sabah? There are legal definitions provided in the Federal Constitution, the State Constitution of Sabah and the Sabah Interpretation (Definition of Native) Ordinance 1952. However, each provision provides vague and unclear definitions for the term "native". This vague and inconsistent definition leads to so many problems faced by the natives of Sabah, both in economic and political aspects. Thus, this paper aims to analyse the relevant legal provisions concerning the definition of a native of Sabah and highlight possible solutions to the problems.

scholarly journals Independency of Bank Guarantee in Iran –US Claims Tribunal: Looking for Legal Approach for Minimizing the Risk of Economic Contracts

2018 ◽  
Vol 26 (10) ◽  
pp. 301-308
Author(s):  
Mohammad Sadeghi ◽  
Ali Ahamdi
Keyword(s):  
Positive Impact ◽  
Banking Regulation ◽  
Legal Analysis ◽  
International Arbitration ◽  
Financial Instrument ◽  
Banking Regulations ◽  
Legal Position ◽  
The Right

Bank guarantees are significant instrument in business contracts, especially in minimizing the risk of economic contracts in light of international contracts. Furthermore, the bank guarantee has positive impact on legal reliability International contracts among the parties. In line with that the independency of bank guarantee from contract terms is other advantage that has been led to consider the bank guarantee as an innovative financial instrument to increase the chance of minimizing the risks. The fact is that bank guarantee associated with paying amount of guarantee in cash and gets rid of the legal dispute over the formalities and delays in getting the right when one party of the contract did not fulfill its obligations. This potential capability of bank guarantee is still suffering lack of certainty on independency of bank guarantee in banking regulations. In this regard, the judgment of international arbitration and their procedures are valuable in understanding and analyzing the banking regulation about bank guarantees. The judgments of international arbitration mostly consider as one appropriate source to manifest a proper approach for legal analysis of independency. Thus, this research would review Iran –US Claims Tribunal as one of the significant cases to find out whether the tribunal has been able to eliminate the legal ambiguities and promote the legal position of these tools through such judgments?

scholarly journals Absolute Properties of Arbitration Decision in Business Dispute Settlement Based on Law No. 30 of 1999 on Arbitration and Alternative Dispute Resolution Law Based on Justice Theory Perspective

2017 ◽  
Vol 4 (3) ◽  
pp. 296
Author(s):  
Aryani Witasari
Keyword(s):  
Legal Status ◽  
Dispute Settlement ◽  
Data Retrieval ◽  
Legal Authority ◽  
Literature Study ◽  
Theory Of Justice ◽  
Existing Problems ◽  
Legal Power ◽  
Legal Relationship ◽  
Alternative Dispute Settlement

Article 2 of Law Number 30 Year 1999 concerning Arbitration and Alternative Dispute Settlement indicates that dispute settlement or disagreement among parties in a certain legal relationship shall be the authority of the arbitration institution, if it has been agreed in an arbitration agreement. This research tried to criticize the concept of absolute nature of the arbitral decision in the settlement of business dispute in the perspective of the theory of justice. Method of data retrieval used in this research was by collecting literature study by studying data and analyzing the entire contents of library by linking to existing problems. The final and legally binding arbitral decision, if associated with Aristotle's corrective theory of justice, does not at all reflect the basic value of justice. This is indicated by not giving an opportunity for another party whose position is higher to correct the decision, whereas in the judicial system, the court as an ordinary court having legal status (legal statue) and legal authority (legal authority/legal power). Verdict the panel of judges can still be corrected through the usual remedies (appeals) and extraordinary reviews.

scholarly journals WATANIC JURISPRUDENCE: ARTICULATING THE LEGITIMATE ELEMENTS OF THE BASIC STRUCTURE OF THE FEDERAL CONSTITUTION

2021 ◽  
Vol 29 (1) ◽  
pp. 1-28
Author(s):  
Wan Ahmad Fauzi Wan Husain
Keyword(s):  
Rule Of Law ◽  
Basic Structure ◽  
Federal Court ◽  
Local History ◽  
The Rule Of Law ◽  
Legal Documents ◽  
Legal Provisions ◽  
Federal Constitution ◽  
Local Courts ◽  
Indian Supreme Court

The doctrine of the basic structure of a constitution would be undisputable if those elements thereunder are clear and representing the facts of our local history, nationhood, and the principle of the rule of law. Former Chief Justice Tun Abdul Hamid Mohamad argued that the doctrine of the basic structure of a constitution introduced by the Indian Supreme Court contradicts Article 159 of the Federal Constitution and beyond the competent jurisdiction of the local courts. Hence, this article puts forward the conceptual framework of the basic structure adopted by the Federal Court in the case of Indira Gandhi to articulate those elements summed therein viewed from the watanic jurisprudence. The watanic jurisprudence analyses legal documents and sources of sovereignty based upon two philosophical worldviews; continuum and dichotomous frameworks relying upon the local legal history context and the present legal provisions of a country. Depending on a broad and purposive manner in proper linguistic, philosophic, and historical contexts of the Malaysian legal historical documents, the legitimate elements of the basic structure are the principle of sovereignty as embedded in the oath of office of the Yang di-Pertuan Agong together with the matters aggregated in Article 38(4), Article 159(5) and Article 161E. The oath of the Yang di-Pertuan Agong thus legitimizes Syariah compliance as the rule of law. The Federal Constitution of Malaysia also expressly protects its basic structure with strict conditional amendments. In conclusion, the basic structure of our Federal Constitution must be viewed from our local circumstances in compliance with the principle of constitutional supremacy and the rule of law.

scholarly journals Institutional and Legal Development of EAEU and EU in Comparative Perspective

2019 ◽  
Vol 7 (3) ◽  
pp. 155-168 ◽  
Author(s):  
Mark Entin ◽  
Vadim Voynikov
Keyword(s):  
Political Elite ◽  
Legal Analysis ◽  
The European Union ◽  
Legal Decisions ◽  
Legal Structure ◽  
Eurasian Economic Union ◽  
History Of ◽  
Points Of View ◽  
Integration Project ◽  
The Eu

Despite the relatively short history of its development, the Eurasian Economic Union (EAEU) is becoming more confident about itself as a successful integration project. At the same time, there is a growing interest in the EAEU by the political elite and scientific community in Russia and abroad. The EAEU is investigated from different points of view, but almost no research is carried out without a comparative legal analysis of the EAEU and the European Union (EU). Both unions belong to the same type of integration organizations; the EAEU was largely created in the image of the EU. However, an analysis of the institutional and legal structure of the EAEU and the EU shows there are fundamental differences between the two unions concerning the principles of their functioning. This article substantiates the fact that supranational constitutionalization within the EU is not typical for the EAEU and is even harmful. At the same time, the technical tools developed by the EU can be useful to the EAEU for resolving current challenges of ensuring sustainability and self-affirmation in the international arena. This experience is of importance in view of the crisis experienced by the EU, since only they were able to manifest what institutional and legal decisions are working within the framework of an integration association, and which should be discarded. It is vital that the EAEU not repeat the mistakes and miscalculations of the EU.

scholarly journals Concerning the Legal Regulation of the Order of Weapon Issue to Judges in the Russian Federation

2019 ◽  
pp. 12-20
Author(s):  
Rinat Mikhailovich Karimov
Keyword(s):  
Russian Federation ◽  
Social Relations ◽  
Legal Regulation ◽  
Legal Analysis ◽  
Safety Measures ◽  
Legal Provisions ◽  
The Social ◽  
Analysis And Synthesis ◽  
The Subject ◽  
The Russian Federation

In this article Karimov analyzes whether it is necessary to amend available safety measures in relation to judicial authorities of the Russian Federation. The aim of the research is to analyze the current order of weapon issue to judges in the Russian Federation. The object of the research is the social relations rising in the process of implementation of legal provisions about the order of weapon issue to judges in the Russian Federation. The subject of the research is the legal acts that regulate the order of weapon issue to judges in the Russian Federaton. The researcher analyzes kinds of weapons that can be issued to a judge upon his or her written inquiry. The research is based on the comparative legal analysis of previous provisions about the order of weapon issue to judges and legal provisions that have been implemented just lately. The analysis is also based on the use of such research methods as analysis and synthesis, generalisation and logical research method. The author of the article proves the idea that the legal specificiation of the order of weapon issue to judges in the Russian Federation will eliminate possibility of attacking judges or their family members. The author focuses on the gaps in relevant legal regulations and suggests to review and make changes in the current law that regulates the order of weapon issue to judges. 

ADMINISTRATIVE RESPONSIBILITY FOR VIOLATIONS OF THE ELECTION LEGISLATION IN THE CONTEXT OF THE LEGAL STATUS OF ELECTORAL COMMISSIONS

2021 ◽  
pp. 16-28
Author(s):  
Sergey V. Vedyashkin ◽  
◽  
Daria V. Sennikova ◽  
Elman S. Yusubov ◽  
◽  
...  
Keyword(s):  
Legal Status ◽  
System Analysis ◽  
Practical Importance ◽  
Legal Responsibility ◽  
Legal Analysis ◽  
Electoral Process ◽  
Legal Provisions ◽  
The Right ◽  
Municipal Election ◽  
Administrative Responsibility

The article deals with the problems of administrative responsibility for violations of the election legislation; the issue is studied in the context of the legal status of electoral commis-sions. The authors assess the administrative-tort and constitutional-legal provisions, mediating issues and the implementation of administrative responsibility for violations of the election legislation. Attention is drawn to the peculiarities of the legal status of electoral commissions and the functions of their activities. The content of certain issues related to the jurisdiction of election commissions in terms of the implementation of their administrative and tort powers is studied in the article; the analysis of their content is carried out, the problems of practical importance, including an assessment of the legal status of election commissions, are pointed out. When writing the article, the authors used the following methods when writing: system analysis, dialectical, logical, comparative-legal, analysis and synthesis, induction and deduction. As a result of the study, the following results were obtained: – the inconsistency of election and administrative legislation and the practice of their enforcement are also expressed in bringing to justice by corpus delicti, which does neither involve the payment of a fairly significant fine, nor significantly affects the maintenance of law and order; – municipal election commissions as well as other election commissions that do not func-tion outside the election campaigns may additionally need material technical and methodological support in fixing administrative offenses; – legal responsibility in the electoral process needs to be transformed according to the principles of the work of election commissions, expressed in the capacious category of “effec-tive care” for the implementation of passive and active suffrage; – the measures of administrative responsibility, first of all, penalties addressed to candi-dates and electoral associations, cannot exceed the amount of funds spent on average for the election campaign at the lowest level, a spontaneous increase in the size of this sanction is not permissible and needs to be revised, taking into account the proposed indicators; – when updating the institution of responsibility in the electoral process, the principle of federalism should also be taken into account. In this regard, it seems possible to delegate to the legislative (representative) bodies of the subject the right to fix in the legislation on administrative offences the constituent elements of crimes used in the course of municipal elections.

Ratifikasi Konvensyen Pertubuhan Bangsa-Bangsa Bersatu terhadap Hak Orang Kurang Upaya: Implikasi dan Realiti dari Dimensi Perundangan dan Kesamarataan

2020 ◽  
Vol 32 (2) ◽  
pp. 297-319
Author(s):  
Norita Azmi ◽  
◽  
Salawati Mat Basir
Keyword(s):  
Human Rights ◽  
Minority Group ◽  
Disabled Persons ◽  
Persons With Disabilities ◽  
Legal Provisions ◽  
Federal Constitution ◽  
Norms And Values ◽  
The Disabled ◽  
The Government ◽  
The Right

Issues related to the disabled right in the country continue to attract criticism and debate, as implementation is very slow and weak. The disabled have the right to live like other normal people, which includes protection in times of danger and emergency. One of the important mechanism for the care of the disabled is through legal means. The government has signed the United Nations Convention on the Rights of Persons with Disabilities (CRPD) as part of its efforts to empower and protect this minority group. As such, the government has taken the initiative to enact the Persons with Disabilities Act 2008 and ratified the Convention on the Rights of Persons with Disabilities (CRPD) in 2010 as one of the government’s commitments in complying with international human rights conventions as long these do not against the Federal Constitution. This article aims to uncover and analyse the legal provisions in Malaysia relating to the disabled and their right to live, as stated in the Federal Constitution and relevant legal provisions. In essence, this shows that Malaysia, as a member of the UN, is bound to adopt international laws and treaties on human rights if these do not violate local norms and values. At the end of the discussion, some ideas are presented as solutions for the government to improve the issue of disabled persons so that in the eyes of the world, Malaysia will be recognized as one of the countries that cares for and defends its disabled, in line with the Convention on the Rights of Persons with Disabilities 2008.

The order of property realisation in bankruptcy (insolvency) procedure under the law of Ukraine and Germany

2021 ◽  
Vol 28 (4) ◽  
pp. 210-222
Author(s):  
Oleksandr D. Sviatotskyi ◽  
Rodion B. Poliakov
Keyword(s):  
Legal Framework ◽  
Legal Analysis ◽  
Electronic Trading ◽  
Trading System ◽  
Legal Study ◽  
Judicial Practice ◽  
Legal Provisions ◽  
German Legislation ◽  
The Law ◽  
The Right

The article represents a comparative legal study of the specifics of the order of debtor's property realisation in the bankruptcy procedure under the law of Ukraine and Germany through the application of hermeneutic (used in accessing the essence of the legal framework and judicial practice); axiological (in determining the evaluative base) along with phenomenological (and the nature of the phenomena); systematic (modeling of the functioning systems) methodological toolkit. The authors emphasise the importance of legal provisions governing the sale of the debtor's property, due to the natural proximity of this stage of the competitive process to the financial component, which, in turn, is inevitably associated with various abuses. An electronic trading system had been recently introduced in Ukraine, on which therefore many hopes and expectations were relied upon. However, the electronic trading system did not cope with tasks set, and many new problems were added to the old ones. The article states that the existence of problematic issues in the procedure of bankrupt property realisation is confirmed, in particular, by the court practice. However, judicial practice in itself often becomes a source of problems. The article pays special attention to the German legislation, which uses a radically opposite model of property sale in insolvency proceedings. The authors justifiably propose to make certain changes to the Ukrainian legislation, by using the positive experience of Germany. As a result of a comparative legal analysis of the legislation of Ukraine and Germany, the authors provide ways of solving the raised issues in the article. The implementation of the recommendations submitted within this comparative-legal study should improve the quality of bankruptcy proceedings, reduce the number of abuses by insolvency trustees, as well as protect the rights and property interests of competitive creditors and creditors with the right of separate satisfaction

Sign in / Sign up

Export Citation Format

Share Document