Practice Directions have been introduced in the civil courts since 1946, and an adaptation of these was introduced in the Syariah courts in 2000. This article aims to explain the validity and position of the Practice Directions, as well as to compare these in terms of of legal provisions and application in the Syariah and civil courts. This research is a qualitative study involving library research (analysis of provisions of relevant laws and case reports), supplemented with interviews. It is found that Practice Directions were applied based on the provisions of the laws in force. However, there are differences in the position and application of Practice Directions between the Syariah courts and the civil courts in terms of source of authority, the authorities issuing the Practice Directions, enforcement and status, as well as the publication of Practice Directions. This study may serve as a guideline for JKSM and JKSN to re-evaluate and amend existing laws, or to form methods for Practice Directions for the courts to ensure that the ones used are valid and cannot be challenged by any party. Keywords: Practice Directions, judicial administration, Syariah court, civil court, shariah law, civil law, practice direction methods.
The judgement in the Kuala Lumpur High Court in the case of Affin Bank Berhad v. Zulkifli Abdullah ([2006] 1 CLJ 438) illustrates the difficulty in cases where Islamic principles such as Bay' Bithaman Ajil or BBA are litigated in a court of law where Islamic Shariah is little understood. From the traditional Islamic law perspective the legal basis arrived at in the judgement is questionable. In the light of this complexity, this article attempts to analyse the effect of the judgement to the principles of Islamic contracts used in banking products and services in Malaysia with reference to the sources used in the creation of the contracts and forum to settle disputes between Islamic Banks and their customers. In conclusion, this article would argue for the appropriate application of the Shariah in the above matters through the promulgation of a specific law in relation to Islamic contracts in banking and finance or alternatively a special procedure to be introduced enabling all matters relating to the question of Shariah be referred to the Shariah Courts for decision.
Whether or not they are considered spiritual or mundane, laws which govern every aspect of human affairs in Nigeria, especially in regards to Islamic Banking and Financial institutions, exist owing to the plural legal system in the country, these aspects of society are regulated by both the Islamic and statutory laws imposed by the former British colonizers. Various legal sources, including the Qur'ān, the ḥadīth, constitution, Banks and Other Financial Institutions Act, Central Bank Act, and Nigerian Deposits Insurance Corporation Act constitute its regulatory framework. This work intends to analyze the said laws with the objective of identifying and filling the lacunae therein, in order to forestall future legal obstacles to the system. This study therefore analyses this convoluted legal hybridity and suggests ways of overcoming any obstacles. The methodology utilized in this research is that of literature review. This study concludes with the suggestion that the said obstacles may be overcome through more emphasis on the use of religious legislation, amendments to the constitution, and a new legislation.
Malaysia is among the countries, which have very close relations with Shafi'i madhhab in term of Islamic Law. This can be seen from the provisions of Syariah Law in Malaysia where the opinion of the Shafi'i madhhab is preferred than other madhhabs. However, the current situations and issues cause that the other opinions from the other madhhabs are also used and practiced in order to provide the best solutions. This is also true in respect on the use of sources of Islamic law, such as Istihsan, Istislah and Qawl Sahabi, which are rejected by the Shafi'i madhhab. Therefore, this study attempts to analyze the development of Islamic law, particularly in the application of the concept of Istihsan in the Syariah Courts in Malaysia. This study has examined a number of cases reported in the Jurnal Hukum issued by the Syariah Judiciary Department of Malaysia (JKSM). The result of this study found that in several cases, the judges have applied indirectly the concept of Istihsan in their judgment. It is also found that it is actually the provisions of the law that allows the Shariah judges to indirectly apply this concept.
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