cyber law & islamic ethics cict3523 sources of islamic law affecting cyberspace

Cyber Law & Islamic

EthicsCICT3523

SOURCES OF ISLAMIC

LAW AFFECTING CYBERSPAC

E

PRIMARY SOURCES

All the schools of Muslim law accept Al-Qur‟an and as-Sunnah as the primary sources.

They are revealed sources since these two are revelations from Allah s.w.t. The Qur‟an and sunnah contain the direct and indirect revelations received by the Prophet.

Al-Quran The fundamental source of Muslim

Lawliteral meaning : reading or

recitationTechnical meaning: The book

containing the speech of God revealed to the prophet Muhammad in Arabic and transmitted to us by continuous testimony.

Al-Quran Characteristics:

Some of the verses in definitive (Qat‟i) and speculative (Zanni) Qat‟i; text which is clear and only has

one meaning and accept no interpretation.

Zanni ; text which is open to interpretation and ijtihad. Most of the quranic verses are zanni.

Brevity and detail Larger part of Quranic legislation consists

of general principles, others provide specific details.

As-Sunnah literally means a clear path, a

procedure, a way of action Technically : All that are narrated from

the Prophet, his acts, his sayings, and whatever he has tacitly approved

Hadith: “I left 2 things among you. You shall not go astray so long as you hold on to them: The Book of Allah and my sunnah.”

As-Sunnah One of the role of sunnah is to explain

the quranic verses Examples of hadith can be used in the

context of cyberlaws; “Examples of hadith can be used in the

context of cyberlaws; “It is prohibited for every muslim to interfere in the dignity, property, or blood of another”. - prevention from violation in cyberspace,

SECONDRY SOURCES The secondary sources are non-

revealed sources of Islamic law. There are different opinions among jurists as regard to the authenticity of these sources.

Al-Ijma‟ (consensus) This source had been widely used during the

time of companions after the demise of the prophet. This was because, previously the prophet explained everything in his sunnah.

After the demise of the prophet, when the companions faced new problems which were not available in Qur‟an and sunnah, the companions will called upon all the other companions and discussed together to find the solution. This agreement or consensus is called ijma‟ and later on it became a law and would be bound by other generations.

Al-Ijma‟ (consensus)Literally; to determine and agree upon something.

Technically; Unanimous agreement of the mujtahidun of the Muslim community of any period following the demise of the Prophet Muhammad on any matter.

Al-Ijma‟ (consensus) Authority: Al-Nisa : 59

O you who believe, Obey God, obey Messenger, and those who are in authority / the ulul amr. Hadith. “ My community shall never agree on an error.”

Al-Ijma‟ (consensus)According to the sunni doctrine,

the muslim mujtahid alone can have a say in the formation of the ijma‟

The Hanafi accept the opinions of the jurists of any age. Hambalis abide by the ijma‟ of the companions only and Malikis repose their faith on the consensus of the scholars of Medina.

Al-Qiyas (analogy) Literally; comparison, with a view to suggest equality or similarity between two things.

Technically; the extension of a shariah value from san original case (asl) to a new case because the latter has the same effecting cause as the former.

Al-Qiyas (analogy) The original case is regulated by Qur‟an and Sunnah and the same textual ruling is extended to the new case by virtue of the commonality of the effective cause (illah). Qiyas is allowed if the solution for a new case cannot be found in the Qur‟an and Sunnah or ijma’.

Al-Istihsan (juristic preference) Literally; to approve or to deem something preferable.

Technically; A method of exercising personal opinion in order to avoid any rigidity and unfairness that might result from the literal enforcement of the existing law.

Al-Istihsan (juristic preference) It involves setting aside an

established analogy in favour of a different ruling which serve the idea of justice and public interest in a better way.

Imam Shafie rejected istihsan Imam Malik used the same principle

but this source is known as masalih mursalah.

Hanafis accept it.

Maslahah Mursalah (consideration of public interest) or Istislah

The word maslahah means benefits or interests.

Maslahah mursalah refers to unrestricted public interest in the sense of its not having been regulated by the God insofar as no textual authority can be found on its validity

Maslahah Mursalah (consideration of public interest) or Istislah

Technically; A consideration which is proper and harmonious with the objectives of shariah (maqasid of shariah), it secures a benefit or prevents a harm. Must not contrary to Qur‟an and sunnah.

Most of the Ulama‟ especially Imam Malik accepted it as a source of Islamic Law.

Urf (custom) Definition; ”that what is known.‟ Recurring practices which are

acceptable to people of sound nature. It is a collective practice of a large number of people.

Customs can be a source of Islamic law if it does not contravene with the principles of shariah and it must be observed and upheld by the court of law.

Cyber Law & Islamic

EthicsCICT3523

REGULATORY

FRAMEWORKS

GOVERNING CYBERSPAC

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REGULATORY INSTRUMENTS Under the MSC Bill of Guarantees,

the government has committed to provide a comprehensive framework of cyberlaws and intellectual property laws to facilitate and assist the development of the IT and multimedia.

The Digital Signature Act 1997 Enforced on the 1st October 1998, this act is an enabling law that allows for the development of, among others, e-commerce by providing an avenue for secure and legally-recognized on-line transaction through the use of digital signatures. The Act provides a framework for the licensing and regulation of Certification Authorities, and the recognition of digital signatures as a means of authenticating and ensuring the integrity of electronic documents.

The Copyright (Amendment) Act 1997

The amendment Act, which amended The Copyright Act 1987, came into force on 1st April 1999. Amongst other things, the Amendment Act makes unauthorized transmission of copyright works over the Internet an infringement of copyright. It is also an infringement of copyright to circumvent any affective technological measures aimed at ensuring adequate protection of intellectual property rights for companies investing in IT and multimedia environment.

The Computer Crimes Act 1997 The Act penalizes various activities relating to the misuse of the computers. Amongst other things, it deals with unauthorized access to computer material, unauthorized access with intent to commit other offences and unauthorized modification of computer contents. It also makes provisions to facilitate investigations for the enforcement of the Act. The Computer Crime Act 1997 was brought into effect on the 1st June 2000.

The Telemedicine Act 1997

The Act provides a framework enabling licensed medical practitioners to provide telemedical services using audio, visual and data communications.

The Communications and Multimedia Act 1998

This Act, which came into effect on the 1st April 1999, provides a regulatory framework to cater convergence of the communications, broadcasting and computing industries, which the objective of, amongst other things, making Malaysia a major global hub for communications and multimedia information and content services. The Act repealed the Telecommunications Act 1950 and the Broadcasting Act 1988.

The Personal Data Protection Act 2010

The Act seeks to regulate the processing of personal data of individuals involved in commercial transactions by data users so as to provide protection to the individual’s personal data, thereby safeguarding the interests of such individual.

Other relevant law

In 2000, the Optical Discs Act was enacted and came into force in September to deal with the problem of illegal copies of copyright works in the form of optical discs such as DVD, VCD, CDs etc. The law provides for the regulation of the manufacturer of optical disc and the licensing of optical disc manufacturers. It represents one of the legislative initiatives taken to combat the problem of piracy of copyright works and in the process to strengthen the protection of intellectual rights in Malaysia.

REGULATORY AUTHORITIES Bank Negara – National Multipurpose Cards, e-

business Ministry of Education - Smart schools/ Research

and Development cluster Ministry of Health - Telemedicine/ telehealth Ministry of Science, Technology and Innovation ;

R& D Cluster. Ministry of International Trade and Industry -

Technopreneur Development, e-commerce Ministry of Information, Communication and

Culture – Malaysian Communications and Multimedia Commission