International Islamic University Malaysia (IIUM) Law Journal
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ANALYSIS ON THE TERMINATION OF FOREIGN PUBLIC-PRIVATE PARTNERSHIP BY THE GOVERNMENT
Full text linkThe implementation of foreign public-private partnerships (PPP) as alternative funding to build an infrastructure of a country has been a common practice. However, upon the termination of the PPP, the government may intend to own and manage the infrastructure fully. This article analyses whether such a situation falls under the legal concept of expropriation or a breach of contract. The article uses the doctrinal research method that combines the statute approaches, conceptual approaches, and case approach. The research concludes that the distinction can be made based on the government's capacity as an authority or a party to the contract. If the government acts as a public authority, then the termination of PPP is considered as an indirect expropriation; if the government action is based on its commercial capacity or as a party to a contract, then the termination of PPP is considered a breach of contract
ADMINISTRATION OF ESTATES: RESOLUTION OF DISPUTES IN ACHIEVING SUSTAINABILITY AMONG THE DECEASED’S FAMILY
Full text linkThe UN Sustainable Development Goals (SDG) provides for seventeen universal objectives in which three of which are related to the administration of estate namely no poverty, zero hunger and gender equality. Issues on sustainability in estate administration are commonly associated with problems that occur during the management of the deceased’s estate. Issues such as disputes among family members and mismanagement of asset by the personal representative or senior family members often lead to delays in the estate administration. Over the years, inefficiency in the administration of the estate process has led to financial instability such as poverty and in an extreme situation, hunger of the deceased’s family members as their entitlement over the asset was jeopardised by the mismanagement and unfair distribution of the estate. This paper addresses the sustainability issues in estate administration where the focus of the discussion is the issues of disputes among the family members. This paper also suggests a resolution of the dispute by way of mediation process, which is capable of maintaining sustainability in estate administration. Employing a qualitative approach, the paper adopts a research method through a library-based study by examining materials including statutory provisions, case laws, textbooks, journal articles, newspapers, conference proceedings and seminar papers. The research found that preserving a good relationship between the family members is one of the keys to ensure smoothness and consistency in estate administration, hence contributing to the sustainability of the deceased’s family members as well as adhering to the SDG
THE PRINCIPLE THAT THE LAND DOMINATES THE SEA IN THE CONTEXT OF SOUTH CHINA SEA DISPUTES: A CRITICAL APPRAISAL
Full text linkAccording to the principle that the land dominates the sea, the land is always the basis for any claim of maritime entitlements. Without a land with a coastline or coastal front under its sovereignty, no state can claim any maritime entitlement. The land here includes not only the continental mainland but also islands which may generate the same maritime entitlements. Nonetheless, certain claimants of the South China Sea have rejected or tried to bend the principle in furtherance of their respective claims. The main objective of the present paper, therefore, is to assess the status of the principle as customary international law and its application to the nine-dash-line claim of China and other claims based on maritime features such as atolls, coral reefs, shoals, and the like. The paper reviews the decisions of the international courts and tribunals on one hand and analyses the relevant provisions of the UNCLOS on the other. The paper also applies interpretative tools to reaffirm the meaning of Article 121 of the UNCLOS: the regime of islands. The paper concludes that the claim of historic rights in the nine-dash-line is not squarely in accord with the principle and that most of the claims on the South China Sea that are based on artificially built structures and land reclamation defeat the letter and spirit of the regime of islands, which is a manifestation of the principle that the land dominates the sea
PUBLIC VENTURE IN PRIVATE COMPANIES THROUGH CROWDFUNDING METHOD OF PEER-TO-PEER LENDING IN MALAYSIA
Full text linkDigital funding platforms have been contemporaneously developed and utilised as a medium to enable businesses and companies to seek funds and to raise capital for any kind of commercial purposes, at any time or place. Such technology allows the service providers to invite the public to participate in generating funds for the businesses and companies in need. Through this mechanism, it is factual that funds are contributed by the public, while the law clearly provides the restriction of the public to invest or deposit or hold equity in private companies. Allowing the public to directly invest in private companies would be considered as illegal considering the legal restriction imposed on the private companies under the statute. Therefore, this article aims to study the legality of venturing this public money into the business investment of private companies. The focus of this study is the governing law in Malaysia in respect of the legality of funding private companies through online social lending namely peer-to-peer lending (P2P lending). This study is conducted by way of contents analysis of various provisions of relevant legislations. The outcomes of this study show that digital social lending such as P2P lending, has grown and been accepted by various natures of enterprises and private companies in order to start-up their business operation in Malaysia, as it compliments the limitation for private companies to invite the public to venture into their business. 
AN OVERVIEW OF THE LEGAL FRAMEWORK GOVERNING CYBERBULLYING AMONG CHILDREN IN MALAYSIA
Full text linkThe Internet has changed people’s lifestyles since its inception in the nineties. Since then, it has become an essential tool and daily need for all generations, including children. Despite its significant advantages for online class, gathering knowledge and information, it also has its disadvantages. One of the disadvantages is that children can be potentially exposed to cyberbullying, either as a victim or a perpetrator. Easier access to the Internet via various types of electronic devices such as smartphones, tablets, laptops, and desktop computers has contributed to the increase in child cyberbullying incidents. A survey conducted by the United Nations Children’s Fund (UNICEF) in 2019 discovered that 28% children in Malaysia were victims of online violence. In global statistics among 28 countries, Malaysia was ranked 6th place and 2nd place among the Asia countries in cyberbullying. The objectives of this study are to examine the scenario of child cyberbullying in Malaysia and identify related legal provisions that existed in Malaysia. The method used in this study is doctrinal research by referring to journals, books, conference papers, newspapers, and other periodicals. This research found out that the existing laws are not adequate to protect children from cyberbullying. Thus, it is suggested that there should be specific provisions on cyberbullying protection especially for child in Malaysia
RIGHTS OF UNDOCUMENTED MIGRANT CHILDREN TO EDUCATION UNDER THE MALAYSIAN LEGAL FRAMEWORK: TOWARDS A HUMAN RIGHT APPROACH
Full text linkMigration occurs for a variety of reasons, including political, economic, social, and environmental considerations. Migrants frequently bring members of their families to receiving countries in search of a new and better life. Like many other countries, Malaysia has long struggled with the issue of undocumented migrants, including children. One of the most critical issues concerning migrant children is the deprivation of their right to an education. This issue is a serious concern because education is regarded as a fundamental human right that can realize and fulfil various other rights. This paper aims to investigate Malaysian law concerning the right of undocumented migrant children to an education. It adopts qualitative research of doctrinal and comparative nature. It will comparatively analyse the existing Malaysian legal framework on the right of undocumented migrant children to education in light of international human rights standards established by international instruments. The article also attempts to identify the barriers that undocumented migrant children experience when trying to obtain an education. The paper concludes that the current Malaysian legal framework is incomprehensive and inadequate to guarantee the right to education of undocumented migrant children. As such, the paper provides recommendations towards the improvement of the existing laws and policies on this particular issue of concern. 
STRIKING THE RIGHT BALANCE BETWEEN PUBLIC AND PRIVATE INTERESTS IN LAND ACQUISITION: CONCEPTUAL FRAMEWORK AND POSITION IN UNITED STATES, AUSTRALIA AND MALAYSIA
No full textThe right to own property is an intrinsic human right that grants ownership and enjoyment to the landowners. The right to property is not absolute, however, because it is subject to the state's authority to acquire the private land. Land acquisition, as the term implies, is the power given to the state to acquire any privately owned land for a public purpose in consideration for adequate compensation.[1] Land acquisition is a critical development tool for the state to overcome the land scarcity when it is required to establish railways, airports or any infrastructure for the public good. On the other hand, land acquisition is a labourious process affecting a wide range of stakeholders. It often involves competing interests between the state (representing the general public) and impacted persons towards their private property. As a result, the land acquisition regime is ostensibly a way of balancing competing interests. However, many countries especially developing nations are having difficulties in striking a balance between public and private interests due to a lack of legal protection and a traditional top-down approach by the state's government branches.[2] This article analyses the approaches taken by the United States, Australia and Malaysia in maintaining the balance in land acquisition. The methodology employed in this study is primarily focused on comparative legal analysis. Present research has shown that, there is little attention given to the balance of rights between the public and private interests in Malaysian land acquisition laws.
[1] Keith, Simon, Patrick McAuslan, Rachael Knight, Jonathon Lindsay, Paul Munro-Faure, David Palmer, and L. Spannenberg, "Compulsory acquisition of land and compensation," FAO Land Tenure Studies, 10 (2008): 7-8.
[2] See generally, Ghimire, Subash, Arbind Tuladhar, and Sagar Raj Sharma. "Governance in land acquisition and compensation for infrastructure development." American Journal of Civil Engineering 5, no. 3 (2017): 169-178; Rose, Hadley, Frank Mugisha, Andrews Kananga, and Daniel Clay. "Implementation of Rwanda’s Expropriation Law and Its Outcomes on the Population." In Proceedings of the Annual World Bank Conference on Land and Poverty, Washington, DC, USA, (2016): 14-18.
EMPHASISING THE ROLE OF ENVIRONMENTAL LAW IN POLLUTION CONTROL TOWARD PUBLIC HEALTH PROTECTIONS
Full text linkThe Coronavirus pandemic (COVID-19) which has globally impacted the social ecosystem is a combination of public health and environmental crises. Amidst the challenges faced in dealing with the consequences of the crises, the pandemic has unintendedly revealed the significance of the current environmental law system to protect human health from pollution. The pandemic has also heightened the realisation that environmental threats are driven by human activities. Consequently, COVID-19 has underscored the need of securing safe and clean surroundings and has emphasised the importance of having measures to protect human health. For Malaysia, strategies aiming at environmental protection could be found within the provisions of the Environmental Quality Act 1974 (EQA). Using the library-based research methodology on primary and secondary sources of law, this paper seeks to examine the scope of the EQA on public health protection and pollution control. Against the backdrop of sustainability, the research concludes that the interlinkages of environmental conservation and public health protection mean that the EQA is the most relevant law to attain these two interrelated objectives. It is submitted that COVID-19 has re-emphasised the importance of environmental law within the realm of health protection, which is in turn essential for the sustainable development agenda
A HISTORICAL EXPOSITION ON THE FUNDAMENTAL FEATURES OF THE FEDERAL CONSTITUTION AND ITS IMPORTANCE TO JUDICIAL INTERPRETATION: A STUDY ON ARTICLE 121(1A)
Full text linkThe Federal Constitution has lasted for more than half a century after its introduction. Recent developments have witnessed various constitutional issues, some of them were controversial in nature such as the latest interpretation of Article 121 (1A) by the judiciary. Hence, an exposition on the heritage foundation of the Constitution is crucial in addressing these developments. The judiciary needs to understand the spirit of all constitutional provisions in order to achieve the correct interpretation of the intention of the legislator. Each country frames its constitution according to its own history and for the good of its own society. The objective of the article is to highlight certain customary elements which form the fundamental features of the Federal Constitution especially on the position of Islam as the religion of the Federation. The research methodology adopted in this article is a doctrinal analysis on the historical narrative that is meant to unearth certain aspects of the fundamental features of the Federal Constitution. The article also analyses the past and recent cases where the judiciary had come up with different interpretations of Article 121 (1A)
ESG REPORTING PRACTICES AMONG ISLAMIC BANKS: A GLOBAL PERSPECTIVE
Full text linkEnvironmental, Social, and Governance (ESG) or sustainability reporting have considerably increased in the last decades. The year 2020 marks a turning point in the United Nations' (UN) 2030 Agenda. The Sustainable Development Goals (SDGs) have created new expectations and gained support among corporate actors who rely on well-informed, timely, and strategically positioned markets. In recent years, research in sustainability practices has expanded globally. However, the banking industry received less attention from the academics since banks are generally not considered the main contributor to sustainability problems. Contrary to this, ESG and Islamic finance are under increasing academic attention, with the latter predicted to be more sensitive to sustainability due to its founding principles. Currently, the global Islamic asset under management (AUM) has increased by 2.3 times in the last decade to reach US$140 billion by the end of 2020. Using the library-based research methodology, this research aims to provide a comprehensive overview of ESG reporting in Islamic banks from a global perspective. Based on this analysis, it is argued that Islamic banks lack sufficient investment in ESG-friendly initiatives. A brief discussion on the classification of ESG components and analysis of key frameworks and guidelines are provided to understand the regulatory framework that governs ESG practices. The article concludes with a recommendation for the necessary actions that can be adopted to enhance ESG practices in Islamic banks to ensure that they remain relevant and competitive with conventional banks