Dual Legal System Research Articles

APPLICATION OF JOINT TENANCY ON REAL PROPERTY AND ITS IMPACT UNDER THE LAW OF SUCCESSION IN MALAYSIA

Joint ownership refers to property owned by two or more persons. Two significant forms of joint ownership in real estate exist joint tenancy and tenancy-in-common. Under common law, joint tenancy is applied as a mechanism for administering an estate, which takes effect after the joint owner's or joint tenant's death. The National Land Code (Act 828) recognises only tenancy-in-common tenancy rather than joint tenancy. Hence, this study proposes a regulatory framework and a suitable mechanism for the land conveyance process in the application of joint tenancy. This study is based on qualitative research and analysis of primary and secondary materials. For a comparative analysis, the study explores the law and practice of joint tenancy in Singapore and Australia for the dual legal and Torren systems. It is predicted that the joint tenancy application would give the proprietor more options in planning the management of his property and rightly give the surviving joint tenant full enjoyment of the property.

THE APPOINTMENT OF A WASI IN ADMINISTRATION OF TESTATE ESTATES IN MALAYSIA: A LEGAL ANALYSIS

In the event of death, an appointment of a wasi is considered as an important requirement under the law because he plays a vital role in ensuring the deceased’s estate to be managed properly and efficiently. In addition, the appointment of wasi may expedite the process of administration and distribution of property and avoid disputes among the family members of the deceased. In Malaysia, the Rules of Court 2012 does not include the estate of a Muslim dying leaving a will because it does not come within the scope of the Wills Act 1959. However, the existence of will with the appointment of a wasi is valid for application of grant of Probate though the fact it is a Muslim will. Moreover, the appointment of a wasi is not clearly mentioned in any states’ enactment but it is only provided under the statutes of general application such as Probate and Administration Act 1959. Thus, this paper attempts to analyse the laws on the appointment of a wasi in estate administration. This study is based on a qualitative study and its approach is a content analysis methodology. This study reveals that the laws governing the appointment of a wasi in Malaysia involves a dual legal system and it subjects to several legal constraints under federal and state laws. The findings of the study provide room for further improvement with regards to the appointment of a wasi particularly in the administration of Muslim’s estate. The study concludes that there is a lacuna in the existing laws where the appointment of a wasi is not expressly clarified in any state laws except provided in federal laws.

Analyzing the Dynamics Between Sharia Law and Civil Law in Governing Divorce Proceedings Among Muslims in Malaysia and Comparing Legal Outcomes

Malaysia’s dual legal system, which comprises both Sharia and Civil Law, presents unique challenges and opportunities in the realm of divorce proceedings. This system allows for the coexistence of two distinct legal frameworks catering to the country’s multi-religious and multi-ethnic population. However, it also leads to divergent outcomes in divorce cases, influenced by differences in legal standards, cultural norms, and procedural approaches. The interaction between these systems affects not only the legal outcomes of divorce cases but also has profound social, economic, and psychological impacts on individuals and families. This paper explores the complexities of navigating the dual legal system in Malaysia, examining the specific challenges individuals face during divorce proceedings. It further discusses recommended policy adjustments and legal reforms aimed at harmonizing the systems to ensure more equitable and consistent outcomes. Additionally, the paper highlights the need for future research directions that could provide deeper insights and guide effective legal and social policies. This study underscores the importance of an integrated approach to legal reform that respects cultural diversity while striving for justice and equality within the legal framework.

The Dual Legal System and Its Effects in the Administration of Justice in Zambia

The Dual Legal System and Its Effects in the Administration of Justice in Zambia

Writing a Colonial Legal History of Northern Nigeria: An Analysis of Methods and Sources

AbstractThis article analyzes the methods and sources of writing a colonial legal history of Africa. The analysis is carried out with a case study of the dual legal system operative in colonial Northern Nigeria from 1900 to 1960, which saw the English common law coexist with Islamic law. I examine how three sources of colonial law – namely, legislations, case law, and legal writings – reveal the varied perspectives of European colonial officials and Africans on the workings of this legal system. I argue that while colonial legislations and legal writings are lopsided toward the perspectives of the British authority, case law in conjunction with African commentaries provide some prospect to engage in a narrative that foregrounds the voices of Africans.

Between State and Women’s Rights: Bahraini Dual Legal System in Focus

Between State and Women’s Rights: Bahraini Dual Legal System in Focus

Teaching Malaysian Islamic Legal System: A Reflection of Current Development in the Shariah Legal Practice

The legal system in Malaysia is uniquely characterised by the presence of dual legal system namely civil and Shariah. Thus, Shariah Law subject is very important to be taught and included in the Bachelor of Law programme. It prepares the student with strong understanding of Islamic Jurisprudence. Therefore, following the requirement imposed by the Malaysian Qualifications Agency (MQA), Malaysian Islamic Legal System (MILS) is a compulsory subject introduced at the Faculty of Law, Universiti Teknologi MARA. This paper examines the syllabus and assessment conducted for MILS subject in determining whether teaching and learning methodology of MILS is in line and attuned with the existing development of Shariah legal practice in the country. In order to achieve the aim of the paper, a qualitative methodology is employed by analysing relevant policy, program standards and literatures. Finding of the paper highlighted that the Islamic jurisprudence part is crucial for the students while the administration of Shariah Law part should always be updated in line with the contemporary issues and practices.

Turning on the lights? Publicity and defensive legal mobilization in protest-related trials in Russia

AbstractHow and to what extent do defense actors use publicity in trials of protesters in contemporary Russia? Why do they fight over strategic uses of publicity if “everything is decided in advance”? Drawing on original ethnographic research, this article finds, first, that publicity accompanies legal resistance to politicized prosecutions and is inventively used by the defense. Second, mobilization of publicity creates opportunities for the defense to bargain with and keep the prosecution in check. Third, the relationship between publicity and legal resistance in repressive settings is ambiguous. Some human rights lawyers embrace publicity and others avoid it. I argue that this divergence should be interpreted in relation to lawyers' embeddedness in different professional ecologies. At the same time, lawyers' publicity strategies are altered by the interactional dimension of the trial. The latter manifests itself on two levels: at the micro-level of a courtroom and in the public sphere where different publics engage in debates that interfere with lawyers' defense strategies. This paper has broader implications for the analysis of defensive legal mobilization in dual legal systems beyond the Russian case.

THE INFLUENCE OF THE OTTOMAN STATE ON ISLAMIC LAW

The last two periods in the history of Islamic law are The Period of Taqlid (Imitation) and The Period of Codification and New Ijtihad (jurisprudence). These periods, correspond to the Ottoman State’s period. According to the chronological period, Ottoman law has a dual distinction: the classical period and the post-Tanzimat period. 
 
 During the taqlid period, which coincided with the classical period of the Ottoman State, many Fiqh books, annotations(haşiye), commentaries(şerh) and fatwa books were published. However, in the period the line of law created by the previous period was not exceeded. The Ottoman State placed emphasis on Shaykh al-Islam, applied “official (madhab) sect” and encouraged the formation of sultanic law. 
 
 The period of codification and new Ijtihad coincides with the post-Tanzimat period of the Ottoman State. In this period when both domestic and western laws emerged and the official sect understanding was not carried out for all laws and modern-style laws were enacted. Distinct perspectives were discussed in the field of law, while some thinkers considered it necessary to codify western law/norms through the reception method; other lawyers have argued the codification of domestic legal rules. As a result, both views were reflected in practice, and this reflection created a dual legal system which caused some serious problems.
 
 The Ottoman state has a very significant place in the development of Islamic Law. The laws it enacted were implemented in other countries even after it collapsed, and the laws it prepared set an example for other Islamic states even in today.

Navigating Dual Legal Systems

This article explains the distinctive nature of Islamic inheritance law and considers the extent to which Muslim residents in Australia can assimilate their faith-based obligations with their country-based obligations in matters of inheritance. The article identifies conflict in the Islamic and Australian intestacy rules and sets out three ways that Muslims can manage this conflict. The article considers the scope for, and feasibility of, the execution of Islamic wills in Australia to demonstrate how they assist Muslims to comply with their religious inheritance obligations. While there is no manifest inadequacy in the current legal framework that impedes Muslims from maintaining an Islamic inheritance, the article establishes two instances where Muslims remain at a disadvantage and adds to calls for reform in the area of family provision.

Article Towards Developing Domestic Maritime Legislation through Sub-regional Economic Integration: Cameroon’s Experience with the ‘CEMAC’ Merchant Shipping Code

Abstract: The regulation of the shipping industry is deeply rooted in treaties or agreements – whether bilateral, multilateral or universal. A multilateral treaty may result in the creation of a formal sub-regional economic integration organization, and there are many such organizations in Africa, of which CEMAC is one. These organizations seek economic integration and development through objectives such as the harmonization of transport sector regulations and tend to develop legal instruments that heavily impact the legislative framework of their member states as a result. The impact of the CEMAC Merchant Shipping Code on Cameroon’s maritime legislation can be seen from what Cameroon has achieved in terms of the modernization of its maritime legislation and the provision of solutions to the challenges inherent in its dual legal system. Furthermore, the CEMAC Shipping Code regime must also be perceived as a component of Cameroon’s overall effort geared towards meeting international maritime legislative implementation and enforcement standards. However, the challenges confronting the country at these various levels are huge and questions arise as to the adequacy of the CEMAC Shipping Code regime in addressing them. This paper thus sets out to make an appraisal of the CEMAC Shipping Code regime in its perceived role as vehicle for developing Cameroon’s maritime legislation and addressing the related challenges inherent in the country’s dual legal system. The methodology adopted is doctrinal in approach and involves a content analysis of primary and secondary data. The paper concludes with a proposed strategic framework for maritime legislative development and some practical suggestions directed at the government of Cameroon, but which should equally be useful to governments elsewhere.

Botswana Child Sexual Abuse legal framework: An analysis of the implementation of Children’s Act 2009

This article examines the implementation of Botswana Children’s Act 2009. Twenty-six in-depth interviews were conducted in two purposively selected sites with child protection front liners, policymakers and caregivers. The Act was analyzed for a definition of child sexual abuse, provision of systems implementing structures, as well as the actual implementation of the Act. Interviews and the Act were analyzed using an inductive analytic approach. The interviews were analyzed using NVivo qualitative analysis software. Significant findings include the existence of the dual legal system, lack of systems implementing structures in most districts as well as lack of community involvement. Future efforts should be put into putting in place systems implementing structures so that the Act could be widely disseminated. These suggested efforts could improve the reach and uptake of the Act. These findings extend knowledge on law implementation and have significant implications for safeguarding of children in settings that grapple with the inconsistencies caused by the dual legal system.

Sources of Adminstraative Law in Egypt

1- Over the years, Egypt has become one of the leading States which have dual legal systems - the Civil and Administrative legal systems, influenced by the French law and the ancient Islamic law. 2- Unlike the Civil law, there is no code for the Administrative Law, it is well known as unwritten law established mainly by the Courts through precedents. However, the Court’s judgments are not the only and exclusive source of the Administrative Law, there are plenty of sources of Administrative Law to preserve its dynamic character. In this thesis, I will explain the various sources of Administrative Law, the role of such source and the method of its application by the Administrative Courts.

Farming within a dual legal land system: An argument for emancipatory food systems planning in Accra, Ghana

Contestation over land is a central element of urban food systems. This paper examines how Ghana’s dual legal land system affects urban farmers. Situated within the “emancipatory planning” discourse, the paper investigates how farmers navigate customary and statutory land rules using tactics that include compliance, opposition and adaptation. Based on field work conducted in urban and peri-urban areas of Accra, the study demonstrates that farmers access land by working around, outside, and within the rules of the dual legal land system. The landowners on whom urban farmers depend also both comply with and violate these same rules. This system perpetuates inequities. Food systems policy and planning must address the structural and systemic inequities that are reinforced by the rules of the land game. The paper concludes with some reflections on how local and national policy and planning can do a better job in supporting urban food production in contexts characterized by complex, dual legal land systems.

Child Support for Muslim Children in Family Courts in Today’s Israel

Abstract The dual legal system of religious and civil law in Israel and the existence of a religious court system alongside a civil one causes distortions in the implementation of the rights and duties of husbands and wives. Due to this duality, in practice, in Israel, there is neither religious law nor law based on equality. This hybrid legal system leads to the reinforcement of what I will call here “patriarchal liberalism,” which means that there is a development in a liberal direction alongside obstacles and barriers that prevent advancement to full equality between men and women. Although this legal hybridity leads to the introduction of liberal norms into the legal relations between men and women, it also preserves patriarchal features. This article focuses on child support allotted to Muslim children in family courts in Israel. Since 2001, both shariʿa courts and family courts may rule in matters of child support for Muslim children, which means that there is parallel jurisdiction between the Muslim religious law according to religious belonging of the parties involved in cases.

Trademark cancellation in terms of commercial and administrative law: a comparison of the UAE and Jordan

This paper concerns the method of judicial review in the dismissal of a trademark, from a procedural judicial perspective. The research examines the impact procedural laws can have on substantive laws, in terms of the influence of commercial litigation and civil procedures on one hand, and administrative law procedures on the other, regarding the potential outcomes for dismissing a trademark. In the UAE's unified legal system, the civil/commercial courts review decisions to register trademarks, while in Jordan's dual legal system it is the administrative courts, which do so. This paper investigates if this difference plays any role in cancelling trademarks, and whether it has any subsequent impact on investment and commerce.

Planning by (mis)rule of laws: The idiom and dilemma of planning within Ghana’s dual legal land systems

This paper contributes to our understanding of urban planning challenges within dual legal land systems in sub-Sahara Africa. It draws ideas from Ananya Roy’s “idioms of urbanization and planning” to make two arguments regarding the prevailing idiom of planning urban and peri-urban areas in Ghana. First, there is (mis)rule of statutory planning and land laws: the state places itself both within and outside statutory planning laws to enforce eminent domain powers, lease publicly acquired land to private developers, (un)map people, places, and informal economic activities, and pay or refuse to pay compensation for publicly acquired land. Second, this (mis)rule co-exists with (mis)rule of customary land laws: customary authorities place themselves within and outside customary laws to negotiate with state and prospective land buyers, (re)lease publicly acquired lands to private developers, and engage in double dipping within Ghana’s deregulated land market (i.e. leasing the same land parcel to multiple developers). Thus, both state and customary authorities, as sovereign keepers of statutory and customary land and planning laws, are able to place themselves within and outside Ghana’s dual legal land rules to declare property ownership, enclaves of value, and zones of exception. Herein lies the idiom and dilemma of planning within Ghana’s dual legal land systems: (mis)rule of statutory and customary planning and land laws.

International Parental Child Abduction in the Malaysian Legal Context: Addressing Issues and the Way Forward

The number of international parental child abduction cases is gradually increasing and the problem has now become a global phenomenon. The worrying situation is that the problem in question is extremely difficult to resolve due to conflicting substantive and procedural laws in various countries. The 1980 Child Abduction Convention is an attempt to address the problem by means of an automatic return mechanism of the abducted child to his country of habitual residence. However, a Malaysian parent would not have that privilege as Malaysia is not a party to the Convention. The primary focus of the present work is to examine whether Malaysia has adequate legal and procedural framework to address the issue of cross-border parental child abduction. The present work makes a thorough analysis of the dual legal system of Malaysia, namely both the civil law and Islamic law streams when dealing with child custody and parental child abduction and assesses in-coming and out-going international parental child abduction cases decided by the Malaysian courts. The article finds that although in the long run, Malaysia should accede to the Child Abduction Convention, there are legitimate concerns on the part of stakeholders and on the fact that the opinion on the ground is against the accession. The article concludes that in the meantime, section 52 of the Child Act 2001 should be amended to strengthen the legal regime regulating parental child abduction in Malaysia.

Legal Benefit: A Comparative Study between Legislation and Islamic Jurisprudence

The study dealt with the legal benefit in both: the legislations, specifically the Jordanian law, and the Islamic jurisprudence through the jurisprudence magazine. The study dealt with how to deal with the legal benefit in these legislations to reach the result of a discrepancy between these legislations and Islamic jurisprudence, it concluded that what is stated in Islamic jurisprudence is the best to apply. Results also showed the following:
 
 
 the Jordanian legislator did not provide for taking it into any of the unified or dual legal systems if the work is mixed, which caused a difference in the provisions of the judiciary
 The texts related to interest in Jordan are texts distributed between the Ottoman Murabaha system, the law of usury, the Jordanian trade law, the law of the Central Bank of Jordan, the Jordanian civil law and the Jordanian Code of Civil Procedure.
 All of the laws referred to above allow for the application of interest except the Civil Code, as article 640 states that: "If the loan contract provides an additional benefit to the contract, it is only to document the lender's right to the condition and validity of the contract", that is, the interest rate in loans is not considered.
 
 
 The provisions of the special laws referred to in respect of interest are applicable, without regard to the title of either party to the contract (that is, whether a trader or a non-trader), without regard also to the transactions of the parties to the contract by commercial transactions or related to the merchant's business needs or not related to those transactions especially considering some of the provisions of these special laws acts of banks as a commercial operation of banks and their customers.

CONFLICT OF LAWS IN MALAYSIAN PLURALISTIC SOCIETY: AN EXAMPLE OF ANTINOMY OF LAW IN A DUAL SYSTEM

Malaysia has a complex legal history with a multiracial society in place after the end of British colonization. Its multi-religious presence is another reflection provided in Article 3 of the Malaysian Federal Constitution, “Islam is the religion of the Federation, but other religions may be practiced in peace and harmony in any part of the Federation”. The legal system is clearly expressed in its adoption of the constitutional supremacy doctrine and the existence of the three main branches of government with a federal system of government. In so far as family law is concerned the legal system has accommodated this form by acknowledging the unwritten sources of customary laws of the various ethnic communities. However, this accommodation to realized freedom of religion has resulted in a dual system of Family Law. A set of laws and courts for the Muslims and another for the non-Muslims. It was believed that this will not be problematic since the arrangement catered for the rights of all. As Malaysian society become intertwined this arrangement may not be so easy after all. The dual family law has caused conflicting issues to arise especially in divorce proceedings and child custody battles for couples of different ethnic (and religious) groups. This is an antinomy in a pluralistic society with a dual legal system. The values that have been developed and accepted are instill among Malaysians that everyone has the right to enjoy fundamental liberties and freedom afforded by the Federal Constitution and respect is given to all to choose their own faiths and way of life in accordance with the law. This is a challenge not only for the government authorities but to the legal fraternities and judiciary in deriving acceptance and conformity on the legal compliance of all parties concerned.