Al Muharraru fi Ushuli al Fiqhi [1-2]

2 juz; 24 cm

Creating security to finance waqf property development in Malaysia: Issues and solutions

Legal and shari’ah issues abound in creating security to finance waqf property development in Malaysia for it involves integrating the shariah concept of waqf with requirements of Malaysian land law as well as the requirements of modern finance under civil law. Banks and financial institutions will not generally finance property development without any form of security for the loan. The best type of security transaction under Malaysian land law is to create a charge on the land under the National Land Code 1965, rendering the land liable as a security which upon default of the chargor, would entitle the chargee to seek statutory remedies including sale of the land. Such may not be feasible for waqf properties due to the inalienable nature of such properties. Due to the remedy of sale of the land upon default, the same issues would arise in regard to other types of securities like a lien and a loan agreement cum assignment. There is therefore a need to diversify the available options in creating security over waqf property. What are the existing shari’ah restrictions on waqf property? Do these restrictions affect the creation of security over waqf lands under conventional Malaysian land law? What are the legal and shariah issues relating to creating a charge over waqf lands? What are some feasible options? Initial findings are that creating a charge on a lease of waqf land as well as resorting to a hybrid form of a traditional security transaction in Malaysia called ‘Jual-Janji’ may hold some answers. Through doctrinal legal research and content analysis, this paper explores these issues and recommends feasible solutions

Islamic Politics and Secular Politics: Can They Co-Exist?

Professor Abdullahi An-Na'im's new book, "Islam and the Secular State: Negotiating the Future of Shari'a," attempts to set out a theoretical framework for the incorporation of the Shari'a (Islamic law) into the public life of secular democratic states. He also provides detailed case studies of the relationship of contemporary secular states to Islam (India, Turkey and Indonesia) as examples of how Muslim commitments to following the Shari'a can be potentially recognized in secular legal systems without subverting basic commitments of the secular state. Professor Na'im also makes explicit Islamic normative arguments in favor of the secular state and against what he calls a religious state in which religious and political authority are fused. In this review essay, I provide an overview of Na'im's theoretical account of the state and the role of Islam within that state, and his understanding of the Shari'a and why it is compatible with the demands of a secular state (or potentially so). I conclude with a critique of the Islamic reasons he offers in defense of the project of a secular state as being grounded in controversial theological claims that have the potential to undermine the possibility of enlisting the support of orthodox Muslims for the project of a secular state. Instead, I suggest a more sensitive reading of the Islamic theological and legal tradition for precedents that would support the project of a secular state. I argue that using the resources of Islamic theological and legal tradition in support of the idea of a secular state is more likely to win traditionalist Muslim support for a secular state than Islamic arguments that rely on controversial theological propositions that are not necessarily required for at least certain kinds of secular states, e.g. a politically liberal state of the sort An-Naim calls for