Intellectual Property Innovation and Development: Sharī’ah Perspectives and Implications on ASEAN and U.S. Business and Trade

Jeong Chun Phuoc holds a Ph.D. in Law from the University of Malaya, Malaysia, a Master of Laws (“LLM”) degree from the National University of Singapore, Singapore, and a Bachelor of Laws (Hons.) (“LLB”) from IIUM University Malaysia. He focused on comparative Sharīʿah and Civil law studies. He is actively advocating “Big Compliance and Big Law” as part of his wider “Lawnomics” framework for a better business world with a relationship to the Sharīʿah Impact Factor on business. Among his pioneering scholarship was the publication of his books including Personal Data Protection: Cases and Commentary (CLJ publication); Revenue Law in Singapore and Malaysia (3d ed. LexisNexis); Whistleblower Protection Law: Cases and Commentary (Lexis Nexis); Patent Law in Malaysia (2d ed. Sweet & Maxwell); Environmental Law and its revision under Halsbury’s Laws of Malaysia/HLM (Lexis Nexis). His recent publications are Patent Law in Malaysia – Cases and Commentary – 2d Ed. (Sweet & Maxwell); Trademarks Law in Malaysia: Cases and Commentary, 2d Ed. All his publications include an intellectual property factor on comparative compliance and regulatory analysis within the Better Business World dimension. He has given lectures at seminars and workshops for the Bar Council (Majlis Peguam Malaysia) and Non-profit Organizations (NGOs). He currently lectures, trains, and teaches Business Law & Ethics, International Business Law, Intellectual Property Law for Global Entrepreneurship, and Legal Research Methodology at Faculty, Research Hubs, and Graduate school levels. He also occasionally conducts special ‘Beyond 360 Compliance & Regulatory’ workshops for SME, business networks strategic Big Compliance paradigm for a Better Business World (BBW) concerning Sharīʿah Impact Factor on entrepreneurship. He has published several books and articles on personal data protection, occupational safety and health, whistleblower protection, environmental law, intellectual property, and revenue law including Syariah Law in mainstream newspapers, and online forums focusing on wider ethical business and sustainable development within “Big Compliance” framework with special comparative reference to Sharīʿah Impact Factor in ASEAN, Asia-Pacific and Mid-East regions.

Wei Yan Ting holds a Bachelor of Law from Xi’an University of Science and Technology, and an LLM from Guangxi University, China. She also holds an MBA, and DBA from LINTON University College, Malaysia. She has 15 years of professional experience in the area of business law and cross-border trade related to the ASEAN region. From 2008-2018, she was the Executive Director and partner of Guangxi Lion King Law. Since 2019, she has been a director and partner at Guangxi Justlaw Legal Firm. In 2021, she was promoted to Deputy to the 15th Nanning Municipal People’s Congress, in China. Her other work related to business and trade law saw her engaged as a Hearing member of the People’s Procuratorate of Guangxi Zhuang Autonomous Deputy Director of the Foreign Affairs Law Committee of Nanning Lawyers Association, China, and Chief legal consultant of Nanning Law Society, China. Her engagement in the ASEAN region on trade, business, and intellectual innovations saw her involved in various capacities and positions such as Vice President of the China-ASEAN Legal Cooperation Centre (CAICC)(Malaysia). Her other appointments include Arbitrator of the Asia International Arbitration Centre (AIAC), Arbitrator of the China International Economic and Trade Arbitration Commission, (CIETAC), Arbitrator of Nanning International Arbitration Court, Arbitrator of Hainan International Arbitration Court, Arbitrator of Kunming International Arbitration Court, and Mediator of Guangxi International Commercial Mediation Centre. She is actively involved in research on business law and trade and commercial implications on ASEAN vide her appointments as Adjunct associate professor of Hebei University of Political Science and Law; Mentor of University of Malaya Faculty of Law, University Malaya, Malaysia; and Deputy Director of the ASEAN Law Committee of the Guangxi Lawyers Association. In her professional and academic engagements with industries and global companies, she has achieved the following honor as a testimony to her expertise in business, trade and intellectual property-related innovation such as a Member in the Talent Pool of a thousand foreign lawyers listed by the Ministry of Justice, China; 2019 Excellent Young Lawyer in Guangxi, China; 2019 Outstanding Achievement Award of the 40th Anniversary of Guangxi Lawyer; Industry 2020, Guangxi Excellent Lawyer; 2020, Nanning Excellent Lawyer; and 2022 Excellent Arbitrator of Nanning Arbitration Commission, China. Her involvement within the academic circle saw her actively engaged in high-impact research on cross-border trade and business in ASEAN such as the publication of Rules, Procedures, And Practice Of Arbitration, China Intellectual Property Press, ISBN 978-751-3073-70-7.2022, first author; Developments And Current Issues In Chinese And Malaysian Law, University of Malaya Press, ISBN 978-967-2182-28-3.2019, co-author; and other on-going research project on ASEAN cross border business, IP, and trade dimensions with Prof Madya Dr Jeong Chun Phuoc.

1. Introductory Overview

This article presents a general overview of Sharīʿah law as practiced and observed in the South East Asian (ASEAN) region.[1] In ASEAN, 10 member countries seek to align economic advantages with the newly established ASEAN Economic Community (‘AEC’). The AEC economic blueprint includes the promotion of Shariah,[2] focusing on initiatives for expanding the Halal Industry 4.0 in line with Industrial Revolution 4.0 imperatives impacting Europe and the US.[3] The view of Sharīʿah introduced in this article is not exhaustive but represents a practical perspective as to how it is applied in ASEAN countries. As an exploratory article, it looks at certain Sharīʿah precepts within local communities and provides select observations on contemporary views of Shariah. It does not go into certain specifics but suffice to say, it will present a general worldview that is sufficiently practical for an outside audience—academic or business—to achieve an adequate level of understanding and appreciation of Sharīʿah law in action within the communal and business dimensions in the 21st Digital Economy driven by IoT and AI-based innovations.

Shariah,[4] also spelled Sharia, is the fundamental religious concept of Islam, namely, its law. The religious law of Islam is seen as the expression of God’s command for Muslims and, in application, constitutes a system of duties that are incumbent upon all Muslims by their religious beliefs. Known as Shariah (literally, “the path leading to the watering place”), the law represents a divinely ordained path of conduct that guides Muslims toward a practical expression of religious conviction in this world and the goal of divine favor in the world to come. Sharīʿah means the ‘way/path’ – the way revealed to Prophet Muhammad (as the last prophet). The Muslim holy book, the Quran, states, “Then We put thee on the (right) Way of Religion: so follow thou that (Way), and follow not the desires of those who know not.”[Al-Quran, Surah Al-Jathiyah 45:18].[5] It is defined as “Islamic canonical law based on the teachings of the Koran and the traditions of the Prophet (Hadith and Sunna), prescribing both religious and secular duties and sometimes retributive penalties for lawbreaking.”[6] Sharīʿah refers to God ’s law in its quality as divine. Loosely used, it can indicate Islam, God ’s religion. It refers to God ’s law as it is with him or with his Prophet, or as it is contained (potentially) within the corpus of revelation.[7] In Islam, and under Sharīʿah law, God refers to Allah. Shariah law at its very essentials, promotes and advocates that its (Muslim Community (‘Ummah’)) constantly leads in Sciences and Technology to develop a global community of inclusive peace, progress, and harmony.

2. Sharīʿah Law in ASEAN Region

Sharīʿah refers to the moral codes and laws exemplified in the Quran and supported by traditions (hadith) as practiced by the prophet Muhammad as the last messenger of God. The Quran is the word of God (kalamullah) i.e. Allah. It remains the most revered book of all books for Muslims. Because Islam is not merely a religion but a “Way of Life,” it encompasses all aspects of human perspectives, including criminal law (hudud), civil law, commercial law, economic activities (mu’amalah), etc. To carry out the right way of life, Muslims are mandated to follow the teachings, regulations, and moral principles of Sharīʿah as ordained in the Quran and hadith sources. Generally, in the ASEAN region, Sharīʿah is observed at the State level, and federal law generally gives legal cognizance to Sharīʿah as practiced in the Muslim-based local communities, especially in ASEAN’s sociopolitical and global business landscape with OECD and the US collectively.

In the mid-eighth century, the emergence of new schools of jurisprudence/thoughts (‘mazhab’) developed Sharīʿah jurisprudence in line with new developments in business and community issues. Key scholars are Abū Hanīfah (d.767), Mālik ibn Anas (d.795), Muhammad ibn Idrīs al-Shāfiʿī (d. 820), and Ahmad ibn Hanbal (d. 855). Abū Hanīfah founded the Hanafi school of thought (‘Mazhab Hanafi’), Mālik ibn Anas the Maliki school of thought (‘Mazhab Maliki’), Muhammad ibn Idrīs al-Shāfiʿī the Shafii school of thought (‘Mazhab Shafii’), and lastly Ahmad ibn Hanbal’s the Hanbali school of thought (‘Mazhab Hanbali’), respectively. As “God’s eternal and immutable will for humanity,” Sharīʿah and Muhammad’s example (sunnah), form the cornerstone of worldly guidance for all Muslims. See Oxford Islamic Studies Online, Shariah (last visited August 2020), for more information. In ASEAN, these Four Schools of Thought (‘Mazhab’) have collectively advocated for a dynamic approach toward the implementation of Sharīʿah Law within global perspectives.

Within the ASEAN and US perspective, the Four Mazhab advocates against all forms of pervasive political self-serving interpretation of the Sharīʿah law in a multiracial society co-existing within the ASEAN region. The approach taken ought to be an approach towards diversity in the manifestation of Islam.

3. Sharīʿah View of the World

The implementation of Sharīʿah seeks to achieve five objectives widely known as Maqasid al-Shari‘ah (Goals of Shariah).[8] The overarching five objectives advocate for an integrated approach to social harmony and overarching public interests (maslaħah) to uphold the administration and establishment of justice (al ‘Adl’), ethics education, and morality (al-Akhlaq’) in public and private domains, prevention of hardship on individuals and community, and elimination of oppression.

In many practices, Sharīʿah law seeks to minimize difficulties faced by Muslims in daily affairs (personal or business) subject to accepted Sharīʿah practices and norms i.e. Sunni requirements. This is based on the principle extracted from the holy book Al-Quran: “Allah intends every facility for you; He does not want to put to difficulties” (Al Quran, Surah Al-Baqarah: 185).[9]

Consensus by Muslim jurists and scholars (ijmak) states that the Maqasid al-Shari‘ah is considered to be the primary motivation in the implementation of Sharīʿah as a way of life.[10] In ASEAN as a whole, Maqasid al-Shari‘ah is the basis for almost all policies and decisions made within the commercial sphere (Mua amalat)[11]. These five objectives advocated by Abû Ishâq ash-Shâtibî (died 790) in Al-Mwafaqat fi Usul al-Ahkam in the science of Usul al-Fiqh. The Maqasid al-Shari‘ah are:

• preservation of the religion (faith)[12]
• preservation of the self (lives)[13]
• preservation of the reason (mind)[14]
• preservation of lineage (descendants)[15]
• preservation of the property (wealth)[16]

In response to the COVID-19 global pandemic, the federal government of Malaysia has declared a Restricted Movement Order 2020 to tackle the spread of COVID-10 in Malaysia.[17] This order, made under the Prevention and Control of Infectious Diseases Act 1988 and the Police Act 1967, enforced restrictions on freedom of movement on every citizen–almost everyone–in the country commencing 18 March 2020 until 31 March 2020.

In response, state religious bodies have given support to the Restricted Movement Order 2020 in Malaysia.[18] Muslims nationwide are now not permitted to carry out congregational prayers at the mosques. Religious activities involving public movement and mass gatherings are now prohibited. All religious activities in mosques and surau will be suspended in compliance with the 15 March 2020 decision made by the National Special Muzakarah Council’s decision.[19] This is to protect the interest of the public as a whole in a multi-racial society such as Malaysia. This is evident in ASEAN member countries where there exists a Muslim population.

The Sharīʿah View of the World is radiant not only towards the proper education of the Ummah but also towards the adoption and promotion of sciences and technologies without any discrimination. Contemporary scholars have led support towards these approaches given a greater imperative to develop business and modern society in line with UN SDG 17 Goals.

4. Shariah and Intellectual Property Innovation

Shariah law does not restrict advancement in innovation about intellectual property innovation and development. This is promoted actively so long as it complies and advances the Maqasid al-Shari‘ah. Within the ASEAN region, IP-related innovation is highly welcomed given the benefits brought by the digital economy where IP plays a key role in the transformation of national and regional economies: “Intellectual Property is a tool of economic development that can produce wealth for the creative and entrepreneurial segment of the population. Managing Intellectual Property well can help increase the revenue streams of businesses and enhance shareholders’ value. As a class of property that includes intangible creation of the human mind, Intellectual Property also protects technology innovations, enhances brand recognition, and increases competitive advantage for products and services in the global marketplace.” (ASEAN, 2024).

Toward these goals, ASEAN has initiated the IPR PLAN known as ASEAN IPR Action Plan 2016-2025 which consolidates several action plans on IPRs comprising four strategic goals:

• A more robust ASEAN IP system is developed by strengthening IP offices and building IP infrastructures in the region;
• Regional IP platforms and infrastructures are developed to contribute to enhancing the ASEAN economic community;
• An expanded and inclusive ASEAN IP ecosystem is developed; and
• Regional mechanisms to promote asset creation and commercialization, particularly geographical indications and traditional knowledge are enhanced.

5. ASEAN-US Economic Co-operation

Within the economic, trade, and economic fabric of ASEAN, IP is recognized as a fundamental driving force in revolutionalizing national economies with global players such as the US and EU Communities. ASEAN has acknowledged that intellectual property (IP) is a fundamental element of the ASEAN Economic Community Blueprint 2025 (WIPO, 2024) that will transform ASEAN into a highly innovative and competitive region that could partner with US interests in achieving economic prosperity and regional trade goodwill.

The recent U.S.-ASEAN Summit and the East Asia Summit in Jakarta, Indonesia from September 5-7, 2023 reconfirm the United States’ interest in the ASEAN role. The Biden-Harris Administration’s 2024 budget had requested a whopping $1.2 billion in economic, development, and security assistance for the nations of Southeast Asia, plus $90 million for engagement with ASEAN towards enhancing ASEAN institutions. Based on the success of the 2022 U.S.-ASEAN Special Summit in Washington, DC, this funding is to be utilized to support the implementation of the ASEAN Outlook on the Indo-Pacific and ensure U.S.-ASEAN cooperation for the people of Southeast Asia, the United States, and the broader Indo-Pacific.

ASEAN is aware that the need for IP leadership is crucial, and especially the need to cooperate with US interests for several broad-based interests including the promotion of Shariah-related business initiatives for a more incisive economic and trade development, especially in Fintech and AI-driven innovations between ASEAN and US companies. WIPO (2024). “Global Innovation Index 2022 – ASEAN and the Future of Innovation-Driven Growth.”

Fintech innovation will revolutionize ASEAN financial services and bring new solutions to meet cross-border financial needs. Singapore has emerged to be a leading fintech hub in ASEAN based on a report released by PwC Singapore, the Singapore Fintech Association (SFA), and the Singapore Economic Development Board (EDB) in the area of Web 3.0, artificial intelligence (AI), and green fintech.

This of course will need open partnerships with major US companies in IoT and AI development with a focus on IP. US-ASEAN (2024). “AI Governance in Southeast Asia.”

At the 10th annual U.S.-ASEAN Summit, 2022 in Phnom Penh, Cambodia, President Biden and the ASEAN leaders elevated U.S.-ASEAN relations to a Comprehensive Strategic Partnership (CSP) signaling the United States’ prioritization of the Indo-Pacific and the ASEAN importance in economic, trade, and business collective engagements.

6. Sharīʿah as a Personal Religion in ASEAN

ASEAN comprises 10 countries, namely Brunei, Burma, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand, and Vietnam. Due to their multi-racial social backgrounds coupled with Islam’s historical presence in local communities, a dual-track legal system is practiced in countries such as Malaysia, Singapore, Indonesia, etc.

Malaysia observed a dual-track legal system comprising civil courts and Sharīʿah Courts (mahkamah syariah). Sharīʿah Courts have jurisdiction over Muslim communities and Islamic affairs, and Muslims may be charged and tried on religious, family, and minor Sharīʿah criminal offenses/charges only. On the other hand, non-Muslims are excluded from Sharīʿah Courts because they come under the jurisdiction of civil courts. As a rule, Sunni is the official sect of Islam in ASEAN countries, representing mainstream Islam.[20] In Malaysia, the Shia sect is considered deviant.

The ASEAN Charter (which entered into force on 15 December 2008) serves as a firm foundation for creating the ASEAN Community by providing a legal status and institutional framework for ASEAN. The ASEAN Charter recognized national law–including Sharīʿah law–as practiced in all member states. Similar to the UK and the US jurisdictions (as two examples of major countries having significant Muslim community presence), Sharīʿah law in the ASEAN region is observed as personal law by Muslim populations; Malaysia and Singapore as notable examples for that matter. For instance, Shariah offenses committed by Muslims in the capital of Malaysia, i.e., Kuala Lumpur follow the provisions of the Syariah Criminal Offences (Federal Territories) Act 1997 (incorporating latest amendment – P.U.(A) 251/2002).[21] Likewise, if the offense is committed by a Muslim in the State of Selangor, then the Selangor’s Enactment No. 9 Of 1995 Syariah Criminal Offences (Selangor) Enactment 1995 applies.

Sharīʿah as far as domestic law is concerned remains a Personal Religion in ASEAN society due to the constitutional and historical backgrounds. From a wider contextual application, Sharīʿah plays a pivotal role in the decision-making process that has come to impact business, international relations, and cooperation between ASEAN, Europe, and US interests.

Othering & Belonging Institute at UC Berkeley (2024). “Legalizing Xenophobia and Islamophobia in the United States.”

The inter-relationship consisting of ASEAN, EU, and the US is therefore critical in forging participative understanding in developing regional trade, business, and innovations, including China for that matter, where Sharīʿah law is recognized for the ethnic minorities and freedom of religion is permitted without racial discrimination. The International Covenant on Civil and Political Rights (ICCPR) requires ASEAN, EU, US, and China to respect Sharīʿah law which seeks to implement the society-based interests as highlighted in the Maqasid al-Shari‘ah.

6.1. Shariah and Innovation

Although Sharīʿah is a Personal Religion in the ASEAN region, Shariah from the perspective of an Economic Ummah strongly encourages IP innovations such as Islamic banking, Islamic Bonds (Sukuk), and Hala-based products. The growth of IF has driven IMF to enhance its preparedness to accommodate it within global financial architectures. This will impact the US, the EU, and the financial world.

This is based on a quote but only one example, a study “Hypothesis 1: The development of the sukuk market has a positive effect on IBs’ financial stability” (M. Ayoub Ledhem, 2023).

Abasimel, N.A. “Islamic Banking and Economics: Concepts and Instruments, Features, Advantages, Differences from Conventional Banks, and Contributions to Economic Growth.” J Knowl Econ 14, 1923–1950 (2023).

7. An Inclusive Religion in Multi-Ethics ASEAN

Sharīʿah law recognizes the rights and obligations of members of other religions, seeks to be considered as inclusive, and advocates pluralism–so long as it does not contradict the teachings and precepts of Islam/Sharīʿah law. The ASEAN 10 legal structure comprises both civil and common law, as well as Sharīʿah law as personal law within the family law domain at the State level as permitted by Federal law. Matters under personal law are inheritance, marriage and divorce, and morality (missing Friday prayers, smoking, drinking, or eating in the fasting month of Ramadan, etc.).

In Malaysia, one issue that has seen much debate in the Family Court are apostasy cases (and cases having Shariah-Civil and religion-related conversion cases) such as Teoh Eng Huat v. Kadhi, Pasir Mas & Anor [1990] 1 CLJ 277 (Rep); [1990] 2 CLJ 11; [1990] 2 MLJ 300, Dalip Kaur v. Pegawai Polis Daerah, Bukit Mertajam & Anor [1991] 1 CLJ 77 (Rep); [1991] 3 CLJ 2768; [1992] 1 MLJ 1, Mohamaed Habibullah Mahmood v Faridah Dato Talib [1992] 2 MLJ 793; Majlis Agama Islam Negeri Sembilan v. Hun Mun Seng [1993] 1 CLJ 179; [1991] 3 MLJ 174, Tan Sung Mooi (f) v Too Miew Kim (1994) 2 AMR 35, 1799; Md Hakim Lee v. Majlis Agama Islam Wilayah Persekutuan [1997] 4 CLJ Supp 419; [1998] 1 MLJ 681, Soon Singh v. Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah [1999] 1 MLJ 489; Shamala Sathiyaseelan v Dr Jeyaganesh C Mogarajah & Anor (2004) 2 CLJ 416; Lina Joy v Majlis Agama Islam Wilayah Persekutuan & 2 Ors 2005 [CA], Subashini a/p Rajasingam v Saravanan a/l Thangathoray 2007 [FC];[22] the Siti Fatimah Tan Abdullah case;[23] and others. These cases have shown the perceived tension between Sharīʿah and Civil law provisions. For example, the perceived conflict as reflected in Section 51, Law Reform (Marriage and Divorce) Act 1976 and Guardianship of Infants Act 1961, etc.

In the 2021 case of Iki Putra Bin Mubarak V. Kerajaan Negeri Selangor & Anor [2021] 3 MLRA 384. Federal Court, Putrajaya has again shown the delicate sensitivity in the application and enforcement of Shariah Law within a multi-racial society in Malaysia. This case has caused much uproar from a Shariah and Civil law perspective.

The case has attracted the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism, and Taoism (MCCBSHT) who have welcomed the unanimous decision of the nine Federal Court Judges in the case of Iki Putra. The decision reminds the religious authorities and the state governments in Malaysia that there is a clear boundary between the Federal & State Legislatures.

The Learned Judges of the Federal Court held whilst list II Para. 1 gives the state legislature the power for “…the creation and punishment of offenses by persons professing the religion of Islam against the precepts of that religion, except about matters included in the Federal List.” The words “except regarding matters included in the Federal List” is the preclusion clause which clearly shows that the state power over Islamic Law is subordinated to federal power and is residual and not inherent.

The Federal Court in its decision stated that “the primary power of legislation in criminal law resides in Parliament. This is further borne out by the state list in terms of the power of the state Legislature to enact criminal Law, namely that the powers are subjected to the preclusion clause in item 1 of the state list and item 9 of the state list.” Given this, the Federal Court had rightly ruled that Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995 touching on the criminalization of unnatural sex is one that Parliament is empowered to act on, and the state has no power to enact such law.

The MCCBCHST had stated in the form of a booklet titled “Hudud Law would undermine the Federal Constitution” dated 26th June 2014 which had similarly stated as has the Federal Court decision now that the state power to enact Syariah Criminal offenses is limited to schedule 9, list 1 and Article 74(2) of the Federal Constitution which provides that “…a state may make laws concerning any of the matters enumerated in the state list” (that is to say the second list set out in the schedule) or the concurrent list (see page 3 of MCCBCHST BOOKLET).

The booklet further page 3 stated that Article 74 (1) of the Federal Constitution provides that “Parliament may make laws concerning any of the matters enumerated in the Federal list or the concurrent list” (that is to say, the first or third list set out in the Ninth schedule).

The MCCBCHST welcomes the Federal Court decision as it has very ably explained the Federal Constitution’s position on the demarcation of jurisdictions between Federal and state legislatures.

Another area of concern within the Shariah law is the interest and well-being of Muslim children born out of wedlock from the perspective of the Births and Deaths Registration Act 1957. This has attracted much legal and constitutional debate from both sides of the divide.[24]

In one reported case, a child born out of wedlock in the State of Johore could not use his father’s name on the child’s birth certificate. In this case, the parents living in the State of Johore had applied to the National Registration Department (JPN) to register the father’s name on the birth certificate of their child under Section 13 of the Malaysian Births and Deaths Registration Act 1957 (‘BDRA’). Their child was born less than six months after the parent’s marriage, and this is deemed illegitimate under Shariah. The Court of Appeal granted them a favorable decision.

The Malaysian National Registration Department (NRD) then filed an appeal to the Federal Court. The Federal Court in a majority 4-3 decision overruled the Court of Appeal and ruled that a Muslim child in the State of Johore born out of wedlock is prohibited from bearing his father’s name.[25] The Federal Court’s seven-member bench allowed the appeal initiated by the Malaysian National Registration Department (NRD) to set aside the Court of Appeal‘s decision. In 2017, the Court of Appeal held that a Muslim illegitimate child could bear his father’s name instead of using “bin Abdullah.” “The name of the first respondent (the child) without ‘bin Abdullah’ shall so remain,” it was held.

The majority decision by the Federal Court decision held that section 13A of the Malaysian Births and Deaths Registration Act 1957 (‘BDRA’) does not apply to the registration of births of Malay Muslim children on the basis that Malays do not carry any surnames. Section 13A of the same Act did not apply to the Malay naming system and did not allow the children to be named with the personal name of a person acknowledged to be the father of the children. The Court further held that the NRD has no power to impose the fatwa (‘religious edict’) of the National Fatwa Committee on the child because there was no fatwa on how to name an illegitimate child gazetted in Johor.

The Federal Court’s majority decision on the “bin Abdullah” case has caused mixed concern.[26] In this case, the Federal Court ordered the removal of the term “bin Abdullah” from a Johor-born Muslim child’s name from his birth certificate. The court also disallowed the father’s name to be a part of the child’s name.

The minority decision in this case is worthy of consideration on this issue.[27] Justice Wong, in his dissent, noted that the Johor child’s illegitimate status was not in dispute under the Shariah courts’ exclusive jurisdiction. He, however, pointed out that the Court of Appeal had noted that the Johor case revolved around the administration of civil law by civil authority and not the administration of Islamic law by a religious authority. He was also of the view that the Court of Appeal’s previous unanimous ruling was correct in that the Malaysian National Record Department (‘NRD’) is not bound by a fatwa (a religious opinion’) issued by a religious body because the NRD’s jurisdiction under the Malaysian Births and Deaths Registration Act 1957 (‘BDRA’) is a civil one, and it is limited to determining if the Johor child’s parent had satisfied Section 13A(2) conditions for his name to be stated to the child’s name. Wong also agreed with the Court of Appeal that a fatwa (‘religious edict’) by a religious body has no legal effect unless so adopted as Federal law by the Malaysian Parliament.

Critics claimed that this decision will not reduce the perceived social stigmatization of Muslim children born out of wedlock in Malaysia.

8. Administration of Islamic Affairs

Administration of Muslim/Islamic matters in ASEAN comes under the administration of the Muslim Law. In almost all ASEAN countries, Shariah is recognized and observed as personal law by civil law and applies to personal matters of parties professing the faith of Islam. This includes marriage (nikah), divorce (talaq), maintenance (nafkah), division of matrimonial assets/property on divorce (harta sepencarian), custody of children (hadhanah), etc.

In Singapore, for example, the Administration of Muslim Law Act (Chapter 3) (Original Enactment: Act 27 of 1966- revised edition 2009 (AMLA) (effective 1968)) defines and regulates powers and jurisdiction of three main Islamic entities, such as the Islamic Religious Council of Singapore (MUIS), Sharīʿah Court (Mahkamah Syariah), and Registry of Muslim Marriages. Muslim marriages are specifically regulated by the Islamic Family Law and Administration of Muslim Law. In Singapore, the Administration of Muslim Law Act (Chapter 3) (Original Enactment: Act 27 Of 1966- revised edition 2009) is the applicable law. Singapore’s Administration of Muslim Law Act (Chapter 3) is an Act relating to Muslims, and it makes provisions for regulating Muslim religious affairs and constituting a council to advise on matters relating to the Muslim religion in Singapore and a Sharīʿah Court.

For Muslim-related matters about Muslim marriage, divorce, and other related matters, section 35 of the Singapore Administration of Muslim Law Act applies, and the Sharīʿah Court in Singapore has jurisdiction:

• The Court shall have jurisdiction throughout Singapore and shall be presided over by a president to be appointed by the President of Singapore.
• The Court shall hear and determine all actions and proceedings in which all the parties are Muslims or where the parties were married under the provisions of the Muslim law, and which involve disputes relating to—
• marriage
• divorces are known in Muslim law as fasakh, cerai taklik, khuluk, and talak
• betrothal, nullity of marriage, or judicial separation
• the disposition or division of property on divorce
• the payment of emas kahwin, maintenance, and consolatory gifts or mutaah.

Apart from this, national law applies and remains dominant and paramount. For example, national criminal law applies to all citizens, residents, and visitors of Singapore, regardless of whether they are Muslim or non-Muslim.

On Sharīʿah matters, section 55 of Singapore’s Administration of Muslim Law Act (AMLA) provides for an Appeal Board to hear appeals from decisions of the Sharīʿah Court, Kadi or Naib Kadi. On any appeal, an Appeal Board may confirm, reverse, or vary the decision of the Sharīʿah Court, exercise any such powers as the Sharīʿah Court could have exercised, make such order as the Sharīʿah Court ought to have made or order a retrial, or award costs if it thinks fit.[28]

In the case of SALIJAH BTE AB LATEH v Mohd Irwan Abdullah [1996] 1 SLR 63; [1995] SGHC 216, the High Court clearly stated as follows:

“I turn now to the other major issue in the case which was whether I had the jurisdiction to hear the application in the first place. The starting point for this discussion was s 16 of the SCJA. The civil jurisdiction of the High Court is set out in s 16(1) as covering any action in personam where the defendant is served with the writ or other originating process in accordance with the Rules of Court or the defendant submits to the jurisdiction of the High Court. This general jurisdiction is limited by s 16(2) which states: Notwithstanding subsection (1), the High Court shall have no jurisdiction to hear and try any civil proceeding which comes within the jurisdiction of the Syariah Court constituted under the Administration of Muslim Law Act.”

9. Teaching Islamic Education in ASEAN

In ASEAN, only qualified and certified teachers are permitted to propagate and teach Islamic education in the respective ASEAN member countries. In Singapore, for example, Islamic teaching refers to the provision of Islamic instruction in any subject to one or more persons who are not his or her family members.[29] In Singapore, a person must be certified/registered under Singapore Asatizah Recognition Scheme (ARS) to be able to teach Islamic teaching to others.[30] For graduates of Islamic studies from non-local universities, they are required to attend Singapore’s Certificate in Islamic Thought in Context program administered by MUIS Academy (as part of a full recognition under the ARS).

In other ASEAN countries, similar requirements are expected. In Brunei, for example, national law is observed. However, the recent enactment of Hudud laws (Sharīʿah criminal law) has provided a new perspective on the Sharīʿah Impact Factor (SIF) on the multi-ethnic society in Brunei.[31] Similar to Singapore, Sharīʿah law has no negative impact on ease of doing business and in carrying out commercial activities in Brunei. Business owners, both local and non-citizens in Brunei and Singapore, are required to observe Sharīʿah law and local customary sensitivities within their business processes and procedures. The same applies in Malaysia.

Certain aspects of Islamic education have been resolved generally in the ASEAN context in Islamic education at the basic foundation levels. However, there are outstanding issues and challenges as State authorities seek to have a stronger voice in deciding education development at State government levels in the higher education domain and the risk of radicalism.

In Malaysia, in the marriage law domain, the Law Reform and Marriage Act 1967 applies only to non-Muslim parties. However, the occurrences of a civil spouse converting to Islam have caused unintended tension within the community, especially so in ancillary matters such as custody of children (hadhanah), division of matrimonial property, payment of nafkah iddah (maintenance), mut’ah (consolatory gift under divorce), etc.

The teaching of Islamic education in the ASEAN context now generally appears to shift focus towards a more inclusive approach to achieving peace and economic progress by leveraging cooperation with the US, EU, and China for that matter. Gouda, M., Gutmann, J. (2021). “Islamic constitutions and religious minorities.” Public Choice 186, 243–265 (2021).

9.1. Islamic Education and Sciences in ASEAN

In examining certain Islamic essential principles, Guiderdoni asserted the “spiritual tenets and intellectual resources of the Islamic faith prompt Muslims to search for knowledge.” The Holy Al-Quran has numerous examples of Islam’s relationship with knowledge (‘ilm’): “with a way to celebrate God’s mystery as well as to approach his intelligibility,” said Guiderdoni, “This intelligibility requires the use of reason encapsulated in a broader perspective of knowledge.” Guiderdoni quoted a well-known verse from the Holy Al-Quran: “Worship your lord till certainty” and many prophetic sayings strongly recommend the pursuit of knowledge as a religious duty “incumbent to all Muslims.”

This sentiment aptly reflected the overall perception of Islamic education and its focus on science subjects and leadership in ASEAN. In fact, in ASEAN, taking for example, Singapore, Malaysia, and Indonesia, Sciences are taught at all levels where religion is closely related to sciences as a way to seek the truth and advance the Ummah economy of the 21st century.

10. Federal Constitution

The federal constitutions of all ASEAN countries guarantee freedom of religion. In Malaysia, Article 11 of the Federal Constitution provides that “every person has the right to profess and practice his religion.” However, this is subject to other compliance requirements, and both State and federal governments are empowered to “control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.”

The Federal Constitution of Malaysia provides that federal law takes precedence over State law as guided in Daud Mamat & Ors V. Majlis Agama Islam/Adat & Anor High Court Malaya, Kota Bharu Suriyadi Halim Omar J [Originating Summons No: 24 – 319, 320, 321 & 322 – 2000] 25 February 2001. Issues of Islamic law are State matters, rather than federal matters. Federal Constitution under article 121(1)(A) demarcates jurisdictions between Sharīʿah courts and civil courts which provides, “the Courts referred to in Clause (1) shall have no jurisdiction in respect to any matter within the jurisdiction of the [Sharia] courts.” This amendment has been perceived to have created unintended ambiguity about Sharia versus civil law that has not been resolved clearly.

11. Prohibition of Deviant Teachings

In Malaysia, the Malaysian government listed 56 sects of Islam as “deviant.”[32] These 56 sects are deemed to be threats to national security. Sunni’s Islamic precepts, principles, and practices are observed and enforced by local religious authorities. The government does not recognize marriages between Muslims and non-Muslims. Same-sex marriages, i.e., gay and lesbian marriages, are not permitted and not recognized in Malaysia, Brunei, and Singapore. In Brunei, Hudud law has been implemented to uphold Shariah within the local community, and non-Muslims,[33] i.e. foreigners, are required to observe Shariah when carrying out business dealings–including social activities.

12. Enforcement of Sharīʿah Law, Rulings, Religious Edicts (Fatwa)

Enforcement of Syariah law is by both Federal and State authorities. At the Federal level, it is the Federal Religious authorities and bodies, and at the state level, state religious authorities and bodies. In ASEAN, this appears to be the general norm. In civil matters, Federal law shall prevail over all State laws.

In Malaysia, jurisdiction of both Civil and Sharīʿah courts is prescribed by Article 121 of the Federal constitution. The National Fatwa Council is empowered by law to issue religious edict (fatwa) relating to both business and religious practices impacting Sharīʿah law. Fatwa is legally binding for Muslims, but its enforcement is another matter altogether. The Federal Constitution provides that Islam is a state matter, hence, any decision to comply with the National Fatwa Council’s edicts lies with the State religious authorities/bodies.

13. Religious Harmony and Social Integration

In ASEAN, religious freedom is observed. The Federal government often seeks consultation with other NGOs and religious bodies to seek their view before the implementation of certain Shariah perspectives. This is, of course, not a mandatory requirement. In Malaysia, Article 3(1) of the Federal Constitution provides that “Islam is the religion of the Federation, but other religions may be practiced in peace and harmony in any part of the Federation.” The Federal government often seeks understanding from the Malaysian Consultative Council of Buddhists, Christians, Hindus, Sikhs, and Taoists (MCCBCHST), and its recommendations in most cases on Sharīʿah issues. For instance, in Malaysia in the State of Selangor, a teacher/preacher cannot give any talks/lectures unless he/she is accredited by the State Religious authorities/bodies, i.e. JAIS, to do so according to Selangor Islamic Religious Administration Enactment of 2003.[34] This requirement is similar to the position in Singapore and Brunei. The Shariah approach therefore provides for a participative approach between Muslim and non-muslins representatives to jointly work towards an inclusive social and national economic development regardless of racial and political beliefs.

14. Legal Position of Uruf (Local Custom)

Although it is a general rule that Sharīʿah law applies throughout the ASEAN region, in certain Malay-based communities, Sharīʿah or Muslim law will be applicable and modified by existing Malay custom. For example, the division of harta sepencarian in Malaysia has its origins in Malay customs. Harta sepencarian under Shariah matrimonial law is defined as property jointly acquired by husband and wife, whether directly or indirectly, during the subsistence of their marriage, or “property acquired by the joint efforts of the parties during a marriage.”[35] Harta sepencarian is also recognized generally in Singapore, Brunei, Thailand, and other ASEAN member countries to a certain extent. In Indonesia, Malaysia, and Brunei, customs to a certain extent have legal implications on Sharīʿah practices, especially in the distribution of such harta sepencarian upon divorce.[36]

In Malaysia, local custom relating to harta sepencarian is recognized by the civil courts. In Ali Mat Khamis v. Jamaliah Kassim [1974] 1 MLJ 18, one of the issues was whether a matter involving harta sapencharian ought to be heard in the Court of the Kathi Besar (Chief Shariah Judge) or the High Court of Civil Court. There, the Negeri Sembilan Administration of Muslim Law Enactment 1960 provides in s. 41(3)(b)(iv) that the Court of the Kathi Besar shall, in its civil jurisdiction, hear and determine all actions and proceedings in which all parties profess the Muslim Religion, and which relate to division inter vivos of sapencharian property. The learned Judge, in that case, held that “short of specific words to that effect, the above provision of the Negeri Sembilan enactment was not intended to take away the jurisdiction in civil matters given to a High Court under section 23 of the Courts of Judicature Act 1964 (Act 91).”

On a similar plane, Shankar J in Overseas Investment Pte Ltd v Anthony William O’Brien & Anor [1988] 3 MLJ 332, stated that: “Harta Sepencarian applies to all property acquired in the course of a marriage out of their joint resources or the joint efforts of the spouses. In the absence of clear evidence that the property was to be the sole property of one spouse, both have an equal share. Harta Sepencarian applies to all kinds of properties movable and immovable as long as they were acquired during the marriage.”[37]

In Singapore, as a practical example, in inheritance, sections 112 and 115 of the Administration of Muslim Law Act state that the estate of any Muslim person shall be distributed according to the Muslim law, and subject to possible modification, where applicable, by Malay custom in Singapore.[38] In Malaysia, every state enforces its own customs and Islamic criminal law within state jurisdiction. At the State Legislative Assembly (SLA), each state is empowered to enact Islamic criminal law under item 1 of List II (State List) of the Ninth Schedule to the Malaysian Federal Constitution (Perlembagaan):

“List II—State List 1. except with respect to the Federal territories of Kuala Lumpur, Labuan and putrajaya, Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship, gifts, partitions and non-charitable trusts; wakafs and the definition and regulation of charitable and religious trusts, the appointment of trustees and the incorporation of persons in respect of Islamic religious and charitable endowments, institutions, trusts, charities and charitable institutions operating wholly within the State; Malay customs; Zakat, Fitrah and baitulmal or similar Islamic religious revenue; mosques or any Islamic public place of worship, creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List; the constitution, organization and procedure of Syariah courts, which shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law; the control of propagating doctrines and beliefs among persons professing the religion of Islam; the determination of matters of Islamic law and doctrine and Malay custom.”[39]

Civil criminal law is listed in item 4 of List I (Federal List) of the Ninth Schedule to the Federal Constitution. Most of these offenses are those offenses against the precepts of Islam as provided for under the Sharīʿah Courts (Criminal Jurisdiction) Act 1965 and Sharīʿah Courts (Criminal Jurisdiction) (Amendment and Extension) Act 1989 which applies to all States in Malaysia. However, there is an exception to the enforcement of such Islamic criminal law: Section 2 of Sharīʿah Courts (Criminal Jurisdiction) Act 1965 provides two limitations: (i) that Islamic criminal law shall only be enforceable on persons professing the religion of Islam (the same limitation is also provided in item 1 of State List) and (ii) that such jurisdiction shall not be exercised in respect of any offense punishable with imprisonment for a term exceeding three years, with any fine exceeding RM5,000, with whipping exceeding six strokes or exceeding any combination thereof. Hence, for example, the state of Terengganu legislative assembly has passed the controversial Sharīʿah Criminal Offence (Hudud and Qisas) Enactment 2002, but this could not be enforced. This tension is more focused on the family law domain but has been perceived to create creeping jurisdiction within the Federal vs State dichotomy as discussed at a forum by eminent personalities.[40]

15. Sharīʿah Law at the Federal and State Jurisdiction

At the Federal government level, i.e. “Federal List” or First List set out in the Ninth Schedule of the Federal Constitution of Malaysia 1957, provides for federal jurisdiction. Sharīʿah issues fall under State jurisdiction. At the State government level, this is especially true, on the basis that Sharīʿah law is a matter that falls within state jurisdiction under “State List,” or Second List of the Federal Constitution of Malaysia 1957. Implementation of Sharīʿah law, particularly those having criminal elements, has from time to time, caused tension along State-Federal parameters. The religious pronouncement (Fatwa) by the Majlis Fatwa Kebangsaan may or may not be adopted by the States in Malaysia. Sometimes, a particular Fatwa by a State may not be the same as the position found in adjacent States in Malaysia. This tension is further aggravated in family disputes involving a Muslim spouse and the other non-Muslim spouse, for example, a non-Muslim husband who embraced the faith of Islam and the wife who decided to remain true to her non-Muslim faith (see Article 121 (1a) of Federal Constitution of Malaysia).

In Malaysia, the Prime Minister’s department seeks to harmonize Shari’ahs nationwide to avoid conflict with Civil law provisions. Several areas have been identified such as the seven strategic clusters, namely law and judiciary, education, dakwah and media, mosques, socio-economy, maqasid, and human capital.[41] The objective now is to implement Shariah in such a way that is moved from punitive-based to rehabilitative-centric. This is essential because every State in Malaysia has different punishments for the same crime. The amendment to Article 121 of the Malaysia Federal Constitution was perceived to have resolved the Civil law and Shariah law enforcement dilemma in Malaysia, but several inherent issues continue to plague the Shariah and Judicial bodies and authorities in Malaysia.[42] See Ahmad Ibrahim (1989). The Amendment of Article 121 of the Federal Constitution: Its Effect on the Administration of Islamic Law‖ [1989] 2 MLJ xvii.

16. Islamic Banking and Finance Practices

16.1. Prohibition of Interest (‘Riba’) Under Sharīʿah Law

Riba, or ‘usury/interest’ is prohibited by Sharīʿah Law. Sharīʿah scholars categorized Riba into two main types: Riba al-nasi’ah, and Riba al-Fadl. Riba al-nasi’ah refers to interest imposed on loans, and Riba al-fadl refers to the excess over and above the principal loan. See Qur’an (4:161): “That they took usury, though they were forbidden; and that they devoured men’s substance wrongfully; – We have prepared for those among them who reject Faith a grievous penalty.”

Equity-based financial products and services are golden keys to transforming the current economy into the Ummah Economic Community (UEC). Riba has never been a driver of economic freedom and progress since the emergence of the Industrial Revolution and certainly does not cater to the altruism of Islamic Banking and Finance (IBF). The solution to Riba is a trade and any supporting mechanism such as IBF.

In contrast to Riba, Sharīʿah law strongly supports the use of mudharabah and musyarkaat as sustainable financing tools in the financing of regional trade and global Halal market commerce. These two approaches predominantly grounded on profit and loss sharing are widely encouraged, especially in financing businesses and entrepreneurial activities because they support the development of the real economy. For Islamic banking and finance, see Leo Desmond Pointon & Jeong Chun Phuoc, Revenue Law in Singapore and Malaysia: Cases and Commentary (3d ed. 2011). See also Davis, M. K. Entrepreneurship: An Islamic Perspective, 20 Int’l J. Entrepreneurship & Small Business 63–69 (2013).

16.2. Islamic Banking and Finance: Operational Reality and Practice

Ever since the Islamic Development Bank was established in 1975 as a venue for providing funds for investment projects in member states in ASEAN, led by Malaysia, IBF has been gaining strong growth in the financial sector and capital markets. One of the key objectives of Islamic Banking and Finance is to develop a sustainable social community i.e. Ummah Economic Community (UEC) that could drive a globally inclusive economy for all the people of the world, regardless of race, belief, and background. Sharīʿah’s view in supporting entrepreneurship and commerce is the fact that IBF is based on social justice motivation guided by compliance with Maqasid Sharīʿah. On the concept of Islamic entrepreneurship see, Ramadani, V., Dana, L. P., Ratten, V., & Tahiri, S., The Context of Islamic Entrepreneurship and Business: Concept, Principles and Perspectives, 15 Int’l J. Bus. & Globalization 244–261 (2015).

The Speech by Tan Sri Rais Yatim at the International Council of Islamic Finance Educators – ICIFE (ICIFE) 2nd AGM (ICIFE, 2016) in Kuala Lumpur, Malaysia was inspiring for the IBF (Islamic Banking and Finance) World. The Islamic World, especially Organization of Islamic Cooperation (OIC) Countries (including ASEAN) and led by Malaysia, must forge a new IBF Identity Framework in promoting Sharīʿah Disruptive Innovation for IBF (s-IBF) as a viable alternative to the current global financial chaos. This chaos was brought about (not just by the oil market crush) but by total reliance on Riba centric theory of economic progress since the catastrophic Great Depression. Interest-based economic activities have been proven by Nobel Prize Winners, etc. to have created a vacuum of economic Black Holes within both developed and developing regions including 57 OIC Countries. OECD (and ASEAN) leaders are now still struggling to find that Financial Holy Grail to lift global financial malaise out of the Riba darkening mess.

Under Sharīʿah law, all Riba-driven IBF endeavors are prohibited because it is deemed to be a great barrier to true Open Economies. Western World led by Yale, Oxford, Cambridge, etc. acknowledged the pioneering works by Ibn Taimiyyah, Ibn Khaldun, Al Shatibinomics, and the whole Ahli Sunnah wa Jamaat who are of the view that the current World’s Economic and Financial Chaos (not forgetting that 1998 crush) must be free from Riba to develop a transparent and dynamic Economic Ummah for all. As a good working example, the Dinar-based concept is a good solution to the destructive “printing money problem” (where paper monies are printed with no real asset backup).

IBF is therefore re-charting a new course in financial innovation. Existing accounting standards i.e. IFRSs or local GAAP are Riba-centric based on conventional product structures and practices. These are perceived to be Shariah non-compliant and unable to account for and report present and future Islamic financial transactions. Accounting and Auditing Organization for Islamic Financial Institutions (AAOIFI) has issued a new standard, and four drafts are redefining the trends of future IBF practice and operation in old and new frontiers.

There is strong economic and trade motivation for ASEAN, USA, China, and EU to drive pioneering efforts in pushing for a Sharīʿah Disruptive Innovation in IBF Education as a new green strategic solution to present Riba Theorem of Destructive Economic and Financial Integrity. See Jeong CP, Economic & Financial Disruptive Innovation for Islamic Banking & Finance (IBF) Sustainability, International Council of Islamic Finance Educators (ICIFE) (2016).

16.3. Islamic Banking and Fintech

Islamic Banking and Finance has seen new development in particular, Fintech which will transform the financial services in ASEAN as a whole. ASEAN will look forward to a new partnership with the US to enhance Fintech’s growth toward positive financial stability and expansion in the new digital economy.

16.4. Strategic Development in the IBF Landscape: Islamic Capital Markets

IBF is for the world a viable option for financing. The Securities Commission’s (SC) advocacy for regionalization of ASEAN’s 10 capital markets is rather timely as noted at the recent ASEAN Fixed Income Conference 2017. In 2013, according to SC, ASEAN’s total capital markets stood at US $3 trillion (RM13 trillion), and the saving rate was around US $800 billion in 2015. As an add-on, capital market players may look towards the Islamic Capital Market (ICM) as a new Blue Ocean Wave for the ASEAN capital market. ICM plays a supporting role in the Islamic Banking and Financial (IBF) system in the enhancement of Islamic financial markets in Malaysia.

The advantages of ICM were emphasized in the “Islamic Capital Market Task Force of the International Organization of Securities Commissions” report, which confirmed the role of ICM in the diversification of conventional capital market dimension at global platforms. ICM is anticipated to strengthen ASEAN in propelling collective regional financing, especially in the ASEAN Economic Community (AEC). Developing new ICM initiatives will therefore buffer ASEAN from Brexit, the United States’ protectionism, and the European Union’s economic volatilities.

There is a need to relook at Islamic Banking Education and IBF as the twin towers of ICM growth. ICM has all the ingredients to create innovation in the AEC capital market, catering to real economic progress and regional trade integration. ICM, through innovative products, will not only supplement the conventional capital market but will also provide a unique source of capital in AEC’s economic development agenda in terms of liquidity, scale, and capacity. This will generate capital market diversification and maintain stability in terms of global shocks.

In Malaysia, ICM has seen enormous expansion in the Islamic equity sector and fixed income. According to a report, at the end of 2014, the total value of ICM was about RM1.5 trillion, accounting for 57 percent of the total market capitalization in Malaysia and represented a 10-year compound annual growth rate of 11.3 percent. On Bursa Malaysia, more than 70 percent of the stocks are classified as Sharīʿah-compliant by the Sharīʿah Advisory Council of SC, and there are about 200-unit trust funds across asset classes. Notable innovative products of global sophistication are Malaysia’s first Islamic real estate investment trust (i-REIT), its first Islamic stapled REIT, Asia’s first Islamic exchange-traded fund (i-ETF), and Asia’s first exchange-traded sukuk.

It is time for a wider diffusion and adoption of ICM by setting up an AEC Islamic Capital Market as a new capital space for the AEC Community with the US, EU, and China as participating partners. To regulate and enhance Islamic financial service activities, including the growing ‘Takaful issue,’ Islamic money market, and Islamic foreign exchange market, etc. in Malaysia, a new law has been enacted by Parliament, the Islamic Financial Services Act 2013 (IFSA), because of strong demands and performance in the financial industry. The Islamic Financial Services Act 2013 also supports the Financial Services Act 2013 given the sophisticated financial industry in Malaysia whereby both conventional finance and Islamic finance are carried out in parallel. The regulations provided for by both IFSA and FSA[43] are critical to protect consumer protection and ensure transparent and proper business conduct in financial services activities.

Capital market-related financial services are set to grow within ASEAN and global levels despite challenges: “The application of Sharia principles to the banking sector, capital markets, and non-bank financial institutions is relatively new when compared to the advances of conventional finance. This is partly due to fragmented regulation and the inconsistent application of Sharia principles in different banking jurisdictions. Over 93% of international Islamic finance is concentrated in nine core markets, including major shares in Saudi Arabia, the United Arab Emirates, and Malaysia.”

The implication of Capital market-related financial services between ASEAN and the US and collaboration makes it possible to afford new alternatives to conventional banking. Take for example, the UK case study where it was reported that Prime Minister David Cameron announced in 2013 that the United Kingdom would issue a £200 million ($327 million) Islamic bond, or sukuk, making it the first non-Muslim country to tap into Islamic financing.

It is reported that “[t]housands of Muslims in Chicago use the Islamic finance system, based on Shariah or Islamic law, while also using traditional banks and conventional financing structures.”

16.5. IBF Megatrends: Spearheading Equity for Business and Economic Harmony

Islamic Banking and Finance Rise in UK

In the UK, Sharīʿah compliant banks and conventional banks are offering IBF products and instruments as viable alternatives to conventional options. As of 2017, there are about 30 organizations in the UK offering Islamic financial services under the watchful eyes of the UK Prudential Regulation Authority (PRA). PRA-led prosecution has created new emphasis in Sharīʿah compliant issues in the UK as it seeks to establish itself as the IBF center of excellence. In the case of Qatar Islamic Bank (QIB) UK, Andrew Bailey of the Prudential Regulation Authority said: “In failing to assess, maintain and report on its financial resources for over a year, QIB failed to meet some of the most basic regulatory standards.”

The Case for Islamic Banking and Finance in the USA

IBF is slowly seeing outcomes that shape the future of finance in the US corporate and industrial sectors. From allowing IBF to operate only as offshore alternatives, financial regulators and policymakers are beginning to realize that the Sharīʿah Impact Factor in IBF can enhance America’s Sustainable Future for the American people. “Islamic banks’ capital grew from $200 billion in 2000 to close to $3 trillion in 2016,” said Ibrahim A. Warde, professor of international business at the Fletcher School of Law and Diplomacy at Tufts University. See Aamer Madhani, Shariah Financing Growing Popular in the West, USA Today (Oct. 11, 2014). See also, Naureen S. Malik, Interest-Free Financing for U.S. Muslims, ABC News (last accessed on Nov. 15, 2017).

This is seen in the establishment in the US, several banks offering Islamic Banking and Finance:

• The Bank of Whittier
• Amana Mutual Funds Trust
• Manzil USA
• American Finance House, LARIBA Bank
• MSI Financial Services Corporation
• Dubai Islamic Bank
• Standard Chartered Islamic banking
• JP Morgan

16.6. 21st Century Halal Economic Agenda

Besides IBF, the US is open to Halal businesses to diversify its industry.[44] One main area of concern is Halal Certification for Halal food and products. Strategic cooperation to promote Halal industrial and business sectors is seen among various parties including the US embassies and the US State Department operating in the United States, the Islamic Food and Nutrition Council of America, Islamic Services of America, the Islamic Society of North America’s Halal Certification Agency, and Halal Food Council International.[45]

Smart and strategic cooperation is critical. Areas of strategic cooperation encompass halal food and beverage, halal health products, halal cosmetics, halal tourism, halal Islamic banking and finance, halal fashion, halal AI, halal blockchain technology, etc.

Businesses in Malaysia are striving to be environmentally conscious, in line with the Green Ocean Strategy. However, it also raises several concerns. One main concern is Halal Certification standards. There is a critical need to harmonize Halal standards at all levels of the Halal Economic Super-infrastructure not only for the Ummah but for all players of the Economic Dimension. One way forward is to incorporate the Halal Agenda within the WTO dimension and under the current FTA and Regional Free trade Agreements.

Halal Economic Agenda is now accommodating innovations and IP-driven implemented within the Halal-based industry based on Shariah compliance principle. For instance, the lead taken by Indonesia in ASEAN.

16.7. IBF Innovation and Governance

The establishment of the Malaysian Sharīʿah Index (Index puts Malaysia’s Sharīʿah compliance score at 75.42 percent, NST, March 28) is another good development in Sharīʿah governance. The index uses Maqasid Sharīʿah (five areas) as a benchmark for eight fields of governance, namely Islamic law (which scored 87.19 percent), politics (79.19 percent), economy (65.27 percent), education (82.5 percent), healthcare (73.92 percent), culture (66.47 percent), infrastructure and environment (62.31 percent), and social (68.52 percent).

The purpose of Maqasid Sharīʿah is essentially to create a sustainable UEC based on trade given the ASEAN Economic Community (AEC) agenda. Sharīʿah rulings, according to the four mazhabs, were seen as supporting equity as a strategic driver to achieve Sharīʿah Economic Equilibrium. Since 1983, the focus has been on equity-based financing Mudharabah and Musyarakah (Mudha-Syara), two dynamic methods of equity.

Recently, in Malaysia, a precedent was established for guidance for Islamic Banking and Finance (IBF) practices. The government recognized the role of the Shariah Advisory Council as a single body that is vested with sole authority in the interpretation of IBF matters in Malaysia. This is found in a precedent case of JRI Resources Sdn Bhd v Kuwait Finance House [2019] MLJU 275, whereby the Federal Court in a close 5-4 majority judgment held that the Malaysian National Bank’s (Bank Negara Malaysia) Shariah Advisory Council’s (SAC) findings on Islamic finance are binding on Civil Courts.[46]

Upon deliberation, the nine-member judicial panel stated that Section 56 and Section 57 of the Central Bank of Malaysia Act 2009 provided powers to the SAC to determine which Shariah laws related to IBF were constitutional. This decision follows a dispute involving five agreements made under Islamic banking facilities between two parties, i.e. Kuwait Finance House (Malaysia) Berhad (KFH), a shipping company (JRI Resources Sdn Bhd), and three other guarantors. This means that the rulings endorsed by SAC are recognized as a form of expert opinion in IBF matters, and the Civil court has no power to review such rulings.

However, it is worthy to take note of the dissenting view by Federal Court judge Tan Sri Idrus Harun who thought that the effect of Section 56 and Section 57 of the CBMA was to vest judicial power in the SAC to the exclusion of the High Court on Shariah matters.

Over the years, there has been a departure from equity to debt engagement by both Islamic Banks and conventional banks having Sharīʿah windows. According to a report, “the size of the Islamic finance market ranges from US$1.66 trillion to US$2.1 trillion and is expected to reach US$3.4 trillion by the end of 2018.” However, the majority of Islamic Finance engagements are focused on debt. IBF practice is disproportionately geared toward debt rather than equity, creating a profound conflict of interest. Debt is attractive simply because of the Low-Risk Exposure-Higher ROI (LRHR) factor. Take, for example, the popular murabahah vehicle of debt financing. Should it be debt all the way?

Within the Maqasid Sharīʿah framework applied to IBF’s LRHR, it is, and should only be a secondary component. This is not to delimit the function of debt. How do you strike a balance in promoting both debt and equity financial products? Debt should ideally play a supporting role in forging equity forward as prime optimus, and not the other way around. Hence, a need for a reformation of equity structure and sectoral practice. To re-engineer a return to equity, it is imperative to refocus on Mudha-Syara by redesigning the structure to make it equity-centric while allowing debt-based finance to play a supporting role. There is a need to reform Sharīʿah compliance governance to a level where transparency is achieved for both debt and equity. This calls for Sharīʿah Standardization for equity and debt. See Financial Accounting Standards Board, Accounting Standards Updates – Effective Dates (updated August 2017).

Regulation (statutory and self-regulation) in IBF compliance standardization for debt and equity must be redefined. Disclosure of risks associated with debt and equity must be re-examined by a regulatory body to ensure a fair playing field. The quantum leap for strategy and policy in equity over debt framework is to adopt these measures: tax holidays, exemptions, and deductions for equity preference; incorporation of Equity Ventures Bhd, whereby Debt Ventures Bhd plays a supporting role; and leveraging unity and solidarity for justice and peace. See the 13th Organization of Islamic Cooperation as a new catalyst for economic activities using equity in support of UEC.

The rise of the ASEAN Economic Community (AEC) should be seen as a golden business opportunity to spearhead equitable economic using IBF in particular Mudha-Syara as the new vehicle for US-ASEAN and China-ASEAN global trade perspective. ASEAN-US and China initiatives in this area are key drivers for global open market success for every nation–both developed and developing blocs in global economic prosperity. This is pivotal in realizing social-link business and trade justice objectives in compliance with 17 sustainable development goals (SDGs) by 2030 and beyond.

16.8. Cryptocurrency Mega-Trends

Industry 4.0 has been declared by global economic leaders as the new face of the global economy. Malaysia’s position on business innovation was asserted at The Economist Events’ Innovation Summit 2017, which discussed Asian innovation “in a drawbridge-up world.” Technology renders every industry either relevant or irrelevant. This is the outcome of disruptive innovation, but it is positive in vision and transformation, especially in the internationalization of innovation for trade and business. One of these outcomes is cryptocurrency, such as Bitcoin and Ethereum.

Innovations, such as drones or Uber and Grab e-hailing services, have changed urban transportation and businesses for the interest of the people, despite compliance hiccups. Blockchain technology has transformed conventional banking, financial systems, and norms. Cryptocurrency seeks to overcome the restrictions of conventional banking and financial practices. The world cannot stop innovations such as cryptocurrency. To ensure investors’ confidence, the concept of cryptocurrency must comply with the goals and visions of the law, that is, the regulation of new business innovation. Hence, a balance must be achieved, given the advantages of cryptocurrency.

It also has an impact on Islamic banking and financial sectors. Efforts are underway by Syariah advisory councils and national financial organizations to determine the nature, scope, and legality of cryptocurrency for trade, business, and Islamic banking and financial activities. Innovations must be either regulated transparently by self-regulation or by government legislative framework, for conventional and Islamic banking and financial transactions.

Islamic banking and finance are no longer the new kid on the block. The International Monetary Fund recently held its first discussion on the subject, as well as Fintech innovation and blockchain technology, and how they impacted global trade and economies of scale. Some argued that cryptocurrency was more secure and effective than “conventional banks, which operate using the principle of fractional reserve, which is prohibited by Syariah.”

Cryptocurrency can be moderated and legally accepted to spur economic internationalization agendas for developed and developing regions. Cryptocurrency must comply with Syariah requirements: there must not be elements of interest (riba) involved, no elements of excessive risk (gharar), no elements of speculation or gambling (maisir), and cryptocurrency must be regulated by a central digital authority to provide a guaranteed net of safety and transparency to buyers and investors. As world trade gears up for Industry 4.5 using economic tools to generate global peace, world leaders must make a just and balanced decision to maximize the potential of innovations in the form of cryptocurrency.[47]

17. Sharīʿah Law in Other ASEAN Member Countries

In Malaysia, Shariah plays a dominant role within local communities, and the discussion of Shariah regarding non–Muslim citizens can be a very sensitive issue. Take for example the issue of underage marriage. Under Syariah law, the minimum age for a male Muslim to get married is 18 years old, and for a female Muslim, 16 years old. For those who are below the said the stipulated ages, clear consent was needed as per the respective State Shariah Islamic Family Law Enactment.[48] A Muslim adult who marries an underage Muslim female could be prosecuted for solemnizing a marriage without obtaining the Shariah court’s permission.[49] The States’ Shariah Family Law enactments as a general rule allow those under the legal minimum age to marry subject to clear approval from both the Syariah court and the consent of the bride’s and groom’s parents.

In Singapore, Shariah is recognized, and the government has implemented it in a way that complies with the national agenda of cohesive economic progress. For example, Malay-Muslims are engaged to receive their input on Singapore’s policies impacting Malay-Muslims’ well-being in harmony with Singapore’s national strategy for the future of 2020 and beyond.[50] The ‘M-Cube’ initiative, which comprises MENDAKI, MESRA, and MUIS, is a positive initiative to address issues about marital problems, family support for former prisoners, and youth mentoring activities.[51]

Thailand practices a civil law system with common law influences. Sharīʿah law is recognized by local Muslim populations. The government promotes Islamic affairs and protects the status of Thai Muslims according to Islamic principles and Sharīʿah traditions. See Royal Thai Embassy in Riyadh, Kingdom of Saudi Arabia, Muslim in Thailand. In Thailand, the Administration of Islamic Organizations was enacted in 1997, thus creating the Central Islamic Committee of Thailand to oversee the Sharīʿah law observation and affairs of Thai Muslims. Central Islamic Committee is presided over by a Chularajmontri (Grand Mufti), who is the State adviser on Islamic affairs to the government. Under the Central Committee setup, provinces with a sizeable Muslim population will be regulated by Provincial Islamic Committees. The provincial committee regulates Islamic affairs at the provincial level, and it is empowered to appoint members to the Mosque Committees. Currently, there are about 3,460 committees of mosques nationwide in Thailand. See Royal Thai Embassy in Riyadh, Kingdom of Saudi Arabia, Muslim in Thailand.

The Philippines practices a mixed legal system of civil, common, Islamic, and customary law. Presidential Decree No. 1083 (A Decree to Ordain and Promulgate a Code Recognizing the System of Filipino Muslim Laws, Codifying Muslim Personal Laws, and Providing for Its Administration and Other Purposes) (‘Degree’), regulated Filipino Muslim communities and matters about Sharīʿah law. This degree acknowledges local Sharīʿah customary law besides Sharīʿah law:

“WHEREAS, pursuant to the spirit of the provision of the Constitution of the Philippines that, in order to promote the advancement and effective participation of the National Cultural Communities in the building of the New Society, the State shall consider their customs, traditions, beliefs and interests in the formulation and implementation of its policies; WHEREAS, Islamic law and its principles of equity and justice, to which the Filipino Muslim communities adhere, provide an essential basis for the fuller development of said communities in relation to the search for harmonious relations of all segments of the Filipino nation to enhance national unity.” Chan Robles, Virtual Law Library, Philippine Laws, Statutes and Codes.

A recent development in the Philippines is the government approving a new law that recognized the regulatory framework for Islamic banks. The new Republic Act 11439 approved Islamic banking, which refers to banking business that does not involve interest (riba) and is carried out in compliance with Shari’ah principles.[52] The law positioned Islamic banks under the overall regulatory supervision of the National Bank i.e. Bangko Sentral ng Pilipinas (BSP). BSP’s Monetary Board is permitted to allow conventional banks to implement Islamic banking arrangements and to set up structures and transactions with an approved Islamic banking unit or window.

Indonesia adopts a civil law system based on the Roman-Dutch model and is influenced in many Sharīʿah aspects by customary law (Uruf) either having Sharīʿah elements or indigenous underpinnings. The government required all religious groups to comply with these regulations to promote harmony among all religious sects and groups. The regulations are the Ministry of Religious Affairs and other ministerial directives, i.e. Revised Joint Ministerial Decree on the Construction of Houses of Worship (2006), Overseas Aid to Religious Institutions in Indonesia (1978), and Guidelines for the Propagation of Religion (1978). See US State Department, Indonesia Profile. The 1974 Marriage Law (See US State Department, Indonesia Profile) makes polygamy illegal for civil servants in Indonesia, subject to Sharīʿah requirements. It recognized the Sharīʿah law of marriage that permits Muslim men to legally marry up to four wives subject to Sharīʿah requirements i.e. that he can support each equally (as one of the many conditions). A Muslim man who intends to marry a second wife (third, or fourth wife) is required to get a Sharīʿah court order together with the consent of the first wife. In practice, however, there is no unity in Sharīʿah enforcement and implementation. See US State Department, Indonesia Profile.

Another ASEAN member country that observes a mixed legal system is Brunei. Its legal system is based on English Common law similar to Malaysia and Singapore (due to English/British legal legacy) and Sharīʿah law. In May 2014, the first phase of Sharīʿah penal codes was instituted comprising Shari’ah Penal Code Order, 2013,[53] and supported by amendments to Islamic Religious Council Act, Shari’ah Court Act, and Shari’ah Court Classification Order, 2001.[54] This Sharīʿah penal code applies throughout Brunei in conjunction with existing civil law.[55]

Burma Law Act 1898 provides for recognition of Sharīʿah law in Burma. Application of Islamic Family Law is by section 13 of the Burma Law Act 1898. Personal Laws of Muslims relating to succession, inheritance, marriage, or any religious usage or institution are recognized by the government. Islamic Family Law is not being codified, and Islamic Family Law procedures in Myanmar are based on court decisions/rulings. For instance, issues relating to Waqaf as in the case of Daw Ein & Others v. Daw Chan Thar & Others and Saya Cair v. Daw Tin Tin & Others where the court acknowledged as valid certain Waqaf procedures. See Marlar Than Aung, Current Legal Framework of Islamic Family Law in Myanmar, Burma Library.org. The Constitution of the Union of Myanmar adopted in 2008 provides that “Every citizen is equally entitled to freedom of conscience and the right to freely profess and practice religion subject to public order, morality or health and to the other provisions of this Constitution.”

18. “Intellectual Property Innovation and Development: A Syariah Perspective

Intellectual Property Innovation and Development for the benefit of humanity is not something new in Islam. Syariah law under various Mazahabs (School of Thoughts), endorsed in some ways, IP rights, so long as it is made by Syariah principles relating to the creation and possession of property (Mal). Innovation and development of Intellectual Property have a deep place within the heart of Syariah’s perspective, insofar as there is no contradiction with the Maqasid Al-Syariah. See Intechopen (2020). “Assessing Creativity and Innovation in Islam.”

The Islamic/Syariah view on intellectual property (IP) is grounded on the sources of Syariah sources from the Al-Qur’an, and supported by the traditions of the Prophet Muhamad, i.e. The Sunnah and al-Hadith. The Al-Quran advocates that innovations, creation of IP, and creativity are for the benefit of humanity i.e. Ummah. This is always based on Syariah law and Syariah principles. See S. T. S. Salim and E. Woodcock. The concept of protecting intellectual property-related works and creative works has existed for quite some time, even in ancient Arabic before the arrival of Islam in Peninsula Arabic.

Even before the term ‘intellectual property’ was coined, Syariah law, despite not specifically referring to IP terms such as trademarks, patents, designs, and copyrights, offers protection to these concepts as a personal asset.

19. Intellectual Property Implication on US-ASEAN Region Business and Trade

The hype surrounding the emergence of new markets perhaps in the form of a new Metaverse environment is real, despite several uncertainties. Several new facets of the face of the Metaverse universe are beginning to take shape.

Global technology-based companies are already investing heavily in AI-based technology that will form the drivers of the Metaverse universe. There is a grand plan to implement a big strategy and policy towards creating a new Metaverse universe for all to plug and play seamlessly without borders, including the Ease of Doing Business.

NVIDIA and Unity, Roblox, Decentraland, Sandbox, Touchcast, TerraZero, etc. are competing to develop new brands and domains of business to transform the current market architecture of business, trade, and entertainment play stations, where inter-connection is preferred over everything else. These rapid developments will see the US venturing into ASEAN and enhancing a new level of intellectual property cooperation, creating a bigger pool for regional business and trade within the US, EU, and ASEAN business equation.

20. New Areas of Dispute Settlement

With the emergence of the Metaverse universe, there is a real potential for dispute that may arise from business, trade, and the interactions of diverse parties within the interplay of the Metaverse. Due to the lack of proper regulation of the Metaverse, the need for new areas of dispute settlement mechanism is also real.

How will ASEAN resolve issues about the Metaverse? How will ASEAN’s dispute center respond to new imperatives posted by Metaverse disputes in various forms that are borderless in scope and nature? The legal issues are immense and complicated. The conflict of laws would be alarming. See Cambridge (2015). “ASEAN dispute settlement mechanisms System.”

Take for instance, a scenario: “Some Metaverse platforms will be developed and maintained by centralized corporations (e.g. Meta, Roblox), whilst others will be decentralized – built and owned on the blockchain by their users. This raises an interesting question: can a decentralized Metaverse platform be sued by a user?” See Simmons-Simmons (2022).”How will disputes be resolved in the Metaverse?”

Two case laws demonstrated that a global Metaverse Regulation is required. In Ang v Reliantco Investments Ltd [2019] EWHC 879 (Comm), a user of a cryptocurrency platform relied on Brussels Regulation to seek English court intervention to disregard the platform’s standard terms, which gave Cypriot courts exclusive jurisdiction. The court decided that the user was a consumer and subjected to Brussels Regulation and hence, permitted to bring her action in England. See “Exploring the metaverse: What laws will apply?”

In Soleymani v Nifty Gateway LLC [2022] EWHC 773 (Comm), an art collector challenged a New York arbitration clause utilizing the Civil Jurisdiction and Judgments Act 1982 which provides that consumers are entitled to resolve disputes in their domestic courts. Applying these two cases to the Metaverse problem, and if it occurs in the ASEAN region, it is evident that the decision would be rather interesting.

21. Conclusion

ASEAN is undergoing an economic transformation within the 21st Innovation-centric global economy. The advent of the ASEAN Economic Community (‘AEC’) will witness tremendous opportunities for regional cohesion and integration between ASEAN, the Asia-Pacific region, and the United States in global trade and business sustainability, including dispute settlement.

This will usher in economic progress at all levels considering dismantling trade barriers given myopic protectionist measures,[56] which are antithetical to ease of doing business. Muslim-majority ASEAN countries such as Indonesia, Malaysia, and Brunei will see effective utilizations of the Shariah Impact Factor to advance Halal supermarkets between the United States and ASEAN in new trade agreements and pacts. This includes a new dimension of cooperation and investment in Artificial Intelligence-related (AI) super projects around the globe. On the other hand, Syariah law with a special focus on the Shariah Impact Factor is perceived as accommodating business growth and innovations (especially Halal marketplace [57]) Islamic Banking and Finance, Cryptocurrency, and open trade imperatives as AEC seeks to look not just at the One Belt One Road initiatives but at new future trade agreements with the US for Asia-Pacific hemisphere in light of United Nations’17 Sustainable Development Goals (17 SDG).[58] See US-ASEAN Business Council, Inc., Advancing U.S. Business in Southeast Asia. Besides, the current 17 SDG agenda for sustainable development, the new imperative on AI will see the creation of new domains of global business and trade between the US, EU, and ASEAN because of rapid developments towards the development of an exciting Metaverse environment in the new Internet Society.

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[1] ASEAN (2020). “ASEAN Member States” (accessed 23.1.2020).

[2] Business Insider (2020). “The Halal Food Market is Booming Globally — Here’s How 2 Muslim-Majority Countries Are Looking to Take Advantage.”

[3] ASEAN (2020). “The Booming Halal Industry.” (date accessed 22.3.2020). See also, Research and Markets (2024). “Global Halal Food Market Report 2021-24” (accessed 11 July 2024).

[4] Brittannica (2020). “Shariah.” retrieved from (date accessed 23.1.2020).

[5] Translation by Sahih International: “Then We put you, [O Muhammad], on an ordained way concerning the matter [of religion]; so follow it and do not follow the inclinations of those who do not know”; and translation by Pickthall: “And now have We set thee (O Muhammad) on a clear road of (Our) commandment; so follow it, and follow not the whims of those who know not.” Tafsir At-Tabari Vol. 25, Page 146. For details, see Quran.com.

[6] See Oxford Dictionaries.

[7] See, John L. Esposito (2022). “Oxford Encyclopedia of the Islamic World: Digital Collection“.(accessed 11 July 2024).

[8] M H Kamali. “Maqasid al-Shariʿah Make Simple” (London, Washington), London & Washington. The International Institute of Islamic Thought, Occasional Paper Series 13, August 2008. See also Maqasid al-Shariah: The Objectives of Islamic Law, Islamic Studies, 38:2 (1999), 193209.

[9] Al Quran, Surah Al-Baqarah: 185.

[10] M H Kamali. “Maqasid al-Shariʿah Make Simple” (London, Washington), London & Washington. The International Institute of Islamic Thought, Occasional Paper Series 13, August 2008. See also Maqasid al-Shariah: The Objectives of Islamic Law, Islamic Studies, 38:2 (1999), 193209.

[11] Jeong Chun Phuoc (2016). “Spearheading Equity For Community’s Economic Growth” (accessed 10 July 2024).

[12] “And whoever desires other than Islam as religion-never will it be accepted from him, and he, in the Hereafter, will be among the losers” (3:85).

[13] As provided in verse: “And do not kill the soul which Allah has forbade [to be killed] except by [legal] right. This has He instructed you that you may use reason” (6:33).

[14] “O you who have believed, indeed, intoxicants, gambling, [sacrificing on] stone alters [to other than Allah], and divining arrows are but defilement from the work of Satan, so avoid it that you may be successful” (5:90).

[15] “And do not approach unlawful sexual intercourse. Indeed, it is ever an immorality and is evil as a way” (17:32).

[16] “And do not consume one another’s wealth unjustly or send it [in bribery] to the rulers so that [they might aid] you [to] consume a portion of the wealth of the people in sin, while you know [it is unlawful].” (2:188); “And give to the orphans their properties and do not substitute the defective [of your own] for the good [of theirs]. And do not consume their properties into your own. Indeed, that is ever a great sin” (4:2).

[17] The Star (2020). “Malaysia Announces Movement Control Order After Spike In Covid-19 Cases (Updated)” (accessed 23.3.2020).

[18] Ibid, The Star (2020). “Malaysia Announces Movement Control Order After Spike In Covid-19 Cases (Updated).”

[19] Ibid, The Star (2020). “Malaysia Announces Movement Control Order After Spike In Covid-19 Cases (Updated).”

[20] For details on differences, see BBC Sunni and Shi’a.

[21] MDC publishers (1997). “Syariah Criminal Offences (Federal Territories) Act 1997” (date accessed 11 July 2024).

[22] See also, “Child conversion: What the Federal Court previously decided.”

[23] “Siti Fatimah Case: Lawyers Ticked Off.” See also “Malaysia Woman Scores Rare Legal Win To Quit Islam.”

[24] For data on child marriage in Malaysia, see JKSM and NRD figures from Deputy Women Minister Datuk Azizah Mohd Dun’s parliamentary reply, 19 May 2016 (Hansard). See Malay Mail (2020), “How Malaysia’s Legal System Allows Child Marriage, Five Cases Daily.” (accessed March 2020).

[25] The Star (2020). “‘Bin Abdullah’ Case: Federal Court Says Illegitimate Muslim Child Cannot Bear Father’s Name.“

[26] Malay Mail (2020). “‘Bin Abdullah’ Case: Uphold The Child’s Right To a Name, Identity, and Family — Sisters In Islam.“

[27] Ibid, Malay Mail (2020). “‘Bin Abdullah’ Case: Uphold the Child’s Right to a Name, Identity, and Family — Sisters in Islam.”

[28] Majlis Ugama Islam Singapura (Islamic Religious Council of Singapore), Appeal Board and its Documents, (accessed August 2020).

[29] Asatizah Recognition Scheme (ARS), About (accessed August 2020). See also, Muis.gov.sg (2024). “Asatizah Recognition Scheme (ARS)“. Majlis Ugama Islam Singapura. (date accessed 11 July 2024).

[30] Asatizah Recognition Scheme: ARS consists of two tiers: (1) Islamic Teachers (Asatizah) and (2) Quranic Teachers. ARS Registration Requirements: The applicant is satisfactorily trained to teach at an Islamic education center (based on the qualifications stated in the ARS tiers and levels of teaching section), and the applicant is a fit and proper person to teach at an Islamic education center. In considering whether a person is a fit or proper person to teach, the following is considered: “(i) any conviction for any offense involving dishonesty, moral turpitude, violence or harm to children; (ii) prior suspension or cancellation of recognition of ARS; (iii) any behavior of the person that does not satisfy a standard of behavior generally expected of a teacher at an IECP or is otherwise disgraceful or improper.” See also, Asatizah ARS and IECP, (accessed August 2020).

[31] Straits Times (2020). “Brunei Implements Islamic Law: Facts about Syariah Around the World.” (date accessed 28.2.2020).

[32] Rabu, “PDRM Pantau 56 Kumpulan Ajaran Sesat Berpotensi Ancam Keselamatan,” 15 Tahun Star (December 16, 2015) (accessed August 2020). See also, Bernama, PDRM Pantau 56 Kumpulan Ajaran Sesat Berpotensi Ancam Keselmantan, Astro Awani – Berita Malaysia (Dec. 16, 2015) (accessed August 2020).

[33] Ibid, Straits Times (2020). “Brunei Implements Islamic Law: Facts About Syariah Around the World.”

[34] Section 119 (1) of the Selangor Islamic Religious Administration Enactment of 2003.

[35] Mimi Kamariah in “Family Law in Malaysia,” Malayan Law Journal 1999, p.366.

[36] Mohd NorhusairiMat Hussin, Distribution Practice of Harta Sepencarianin Malaysia: A Literature Review, Journal of Shariah Law Research (2016) vol. 1 (1) 75-88).

[37] Cambridge.org (2019). “A Study of Islamic Family Law in Malaysia: A Select Bibliography“.(date accessed 11 July 2024).

[38] Faraidh, The Islamic Law of Inheritance, (accessed August 2020).

[39] Attorney General’s Chambers of Malaysia (2024). “Federal Constitution“. Attorney General’s Chambers of Malaysia. (date accessed 11 July 2024).

[40] “Sharīʿah in Malaysia: Experts weigh in” Sunday, 13 December 2015, by Tan Yi Liang.

[41] NST (2020) “State Rulers Receptive to Streamlining Syariah law.” (accessed 3.3.2020).

[42] Ibid.

[43] Bank Negara Malaysia. (2024). “Financial Services Act 2013 and Islamic Financial Services Act 2013“. (date accessed 10 July 2024).

[44] Embassy of the United States of America (2024). “Certified Halal in the USA.” (date accessed 11 July 2024).

[45] Ibid, USDS (2020). “Certified Halal in the USA.” Embassy of the United States of America.

[46] Malay Mail (2019). “Federal Court Rules Bank Negara SAC Findings Binding on Civil Courts.”

[47] Jeong CP (2018). “Cryptocurrency can spur growth but must be Syariah-compliant.” (date accessed 13.3.2020).

[48] NST (2020). “Syariah procedure for approving underage marriages to be reviewed.” (accessed May 2020).

[49] The Star (2020). “Man Fined RM1,800 for marrying an 11-year-old girl without Syariah court’s consent.” (accessed March 2020).

[50] Mothership.sg (2024). “S’pore Malay-Muslim community has collective strength that can be harnessed to respond to changing needs: Masagos“.(date accessed 11 July 2024).

[51] Ibid, CNA (2019). “Malay-Muslim Community to Be Consulted on More Issues That Concern Them: Masagos.”

[52] ICIFE (2020). “Duterte Signs Law Regulating Islamic Banks.” (accessed March 2020).

[53] “Everyday life in Brunei under hudud,” October 2, 2016. The Star.

[54] Press Release, Prime Minister’s Office, 30.04.14 Implementation of the Shari’ah Penal Code Order, 2013 (Apr. 30, 2014).

[55] Journal ofislamiclaw.com (2024). “Brunei’s Sharia Penal Code Order: Punitive Turn or the Art of Non-Punishment? ” Harvard Law School. (date accessed 11 July 2024).

[56] “ASEAN, Japan to Strengthen Efforts against Protectionism.”

[57] “ASEAN Must Have a Standard Halal Cert.“

[58] McKinsey.com (2016). “China’s One Belt, One Road: Will it reshape global trade?“.(date accessed 11 July 2024). See also, “Shāfiʿī Islamic law.”. Muslim.sg (2024). “The 4 Mazhabs in Islam”. SDG UN (2024). “The 2030 Agenda for Sustainable Development.” IBM (2024). “The Internet of Things (IoT)”. Belonging.berkeley.edu (2024). “Legalizing Xenophobia and Islamophobia in the United States.” McCbsht (2021). “McCbchst Statement: On the Case of Iki Putra Bin Mubarak v. Kerajaan Negeri Selangor & Anor.” Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism, and Taoism (MCCBSHT). “Understanding Sharia: The Intersection of Islam and the Law.” Gouda, M., Gutmann, J. (2021). “Islamic Constitutions and Religious Minorities.” Public Choice 186, 243–265 (2021). Frank Dhont (2016). “Islamic Higher Education in the ASEAN Region: From Opportunities and Challenges.”