Litigation as dispute resolution mechanism in Islamic finance: Malaysian experience
Litigation as the popular mode of dispute resolution in Islamic finance has proven inadequate in its application and interpretation of Shariah. Trails of Islamic finance cases have shown that civil court judges have no problems deciding on the civil law issues pertaining to Islamic finance, however, they are unsuited for adjudicating the Shariah issues. Section 55–58 of the Central Bank Act 2009 accords formal recognition to the Shariah Advisory Council (SAC) as their rulings is binding to the Islamic financial institutions and the courts. Post 2009 have seen that cases of law challenged the said sections as unconstitutional. The objective of this paper is to analyse the role of SAC either as expert ascertain or expert determination of the rulings on Islamic finance. In the course of discussion, s. 55–58 of Central Bank of Malaysia Act 2009 and Article 121(1) of the Constitution are analysed. Findings of the study showed that the role of SAC is merely expert ascertain of the rulings since they have no judicial power. Islamic financial law is divine in nature and different from the man made laws.
Dispute management in Islamic financial services and products: A maqāṣid-based analysis
The increasing expansion of the Islamic financial services industry beyond its original frontiers has not only come with success stories but has also been affected by the growing preference for litigation as the mode of dispute resolution. Exorbitant legal fees and cost of sustaining protracted litigation are two major challenges that require the attention of major stakeholders in the industry. This paper examines these challenges through a Maqāṣid al-Sharī‘ah focused prism considering the importance of the sustainable dispute management framework in Islamic financial services and products. While singling out the important higher objective (maqṣad) of ḥifẓ al-māl, this study argues that preservation of wealth and financial resources requires effective means of resolving increasingly diverse disputes in the Islamic financial services industry. It is further argued that an effective dispute management framework will consider the original value proposition of Islamic financial intermediation which promotes maṣlaḥah (benefits) and prevents mafsadah (hardship) and ḍarar (financial harm). This makes a case for the affirmative relevance, potential adoption, and systemic modernisation of Islamic dispute management mechanisms such as ṣulḥ, taḥkīm, and muḥtasib in order to fulfil the overarching objective of protection and preservation of wealth and financial resources as one of the core objectives of Sharī‘ah.
Police encounters with people experiencing mental illness
Situations involving people who, due to a mental illness, are unable to care for themselves or pose a threat to others are typically handled by the police. Dealing with people experiencing mental illness who are in crisis is inherently challenging work and police officers are often considered to be unprepared and unsupported. When resolving such encounters, police officers have a number of options, including formal dispositions, such as arrest or involuntary hospitalisation, and informal dispositions, such as calming the person down or ignoring the situation. Given that there is no single framework which can be applied to all encounters between law enforcement personnel and people experiencing mental illness, police officers are necessarily afforded some discretion when resolving these situations. Much research has been conducted regarding the factors which influence outcomes following police encounters with people experiencing mental illness. Among these are the policies and procedures which operate in different police organisations, the availability of community mental health resources, whether the encounter was invoked by the police or the public, and the characteristics of the offender and the police officers involved. The broad aims of this thesis were to (i) describe police officers’ perceptions regarding their experiences dealing with people experiencing mental illness in Victoria, Australia, (ii) describe police officers’ attitudes toward working with people experiencing mental illness, and (iii) investigate the predictive capacity of police officers’ attitudes regarding mental illness related to their preferred means for handling cases involving people experiencing mental illness. Three main studies are reported. The first is an investigation of the current interface between police officers in Victoria and people experiencing mental illness. Based on survey data, findings related to the frequency of police contacts, the types of encounters, the signs and symptoms associated with mental illness and the challenges faced by police officers when performing these duties are reported. The second study is an examination of police officers’ attitudes toward people experiencing mental illness. Participants completed a survey measuring their attitudes and the results were then analysed using Principal Components Analysis (PCA). Analyses revealed four distinct themes underlying the attitudes of surveyed police officers. Broadly speaking, the officers held positive attitudes toward people experiencing mental illness, but negative attitudes about the system that cared for them. Multivariate analyses revealed that the measured attitudes were not associated with demographic characteristics. The third study explored factors which are related to police officers’ preferred means for resolving encounters with people experiencing mental illness. Participants watched one of three vignettes depicting an encounter with a man who might be mentally ill, and were asked to speculate on how they would “likely” and “ideally” resolve the encounter. Each of the vignettes differed according to the apparent severity of the man’s psychiatric symptoms. Discriminant function analysis revealed that the outcomes chosen by officers were related to both the severity of the man’s psychiatric symptoms and the officers’ attitudes toward people experiencing mental illness. These findings highlight the important role played by police officers in managing people in the community who experience mental illness. Some police officers surveyed felt unprepared for this role and many perceived that there was inadequate cooperation from mental health services. Given these challenges, it was important to begin to understand police officers’ attitudes to their work involving people experiencing mental illness. Following quasi-experimental analysis, these attitudes, among with other situational variables, were found to relate to outcomes chosen by police officers following their encounters with people experiencing mental illness.