International Islamic University Malaysia (IIUM) Law Journal
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Jurisdiction of Military Courts over Civilian Terrorists in Pakistan: A Miscarriage of Justice
Full text linkThe jurisdiction of military court was extended over alleged terrorists under the Constitution (Twenty-first Amendment) Act, 2015, in order to permanently wipe out terrorism from Pakistan. The amendment was challenged and petitioners contended that jurisdiction of military courts could not be extended over alleged civilian terrorists because of their peculiar nature. Further, the presiding officer of the military court is a member of the executive, which contradicts the principle of judicial independence, an utmost essential element of safeguarding the due process of law. However, the apex court of Pakistan held that terrorism has a direct nexus with the safety and integrity of Pakistan, therefore, the Parliament was competent to expand the jurisdiction of military courts over civilian terrorists in order to secure the country’s safety and integrity and thus consistent with the recognized criminal justice system. This research critically analyzes the jurisdiction of military courts over civilian terrorists in accordance with the principle of judicial independence. It also identifies the breach of the fundamental rights of alleged civilian terrorists. This study also determines the capability of existing criminal law statutes of ensuring peace whilst maintaining justice for the accused persons. In order to achieve these objectives, this paper adopts a doctrinal research method and carries out an in-depth analysis of the amendments and judgments relating to the issue while also highlighting the constitutionality of the subject matter. Aside from that, juristic literatures and judgments of the superior courts are also analysed. The study concludes that an independent judicial tribunal is absolutely essential in order to ensure that justice is dispensed to the accused. It is further argued that the scope of the military justice system is limited to military personnel, which therefore cannot and should not be expanded over civilian terrorists
The Adequacy of Existing Support Systems in Addressing the Issue of Teenage Pregnancies in Malaysia: A Legal Response
Full text linkThis article examines the adequacy of the current support systems in addressing the issue of teenage pregnancies in Malaysia. This study was conducted primarily through a doctrinal study of existing literature such as articles, journals and reports related to the current issues encountered by the pregnant teenagers. There is also a non-doctrinal method carried out whereby the researchers had conducted fieldwork interviews with the government department, non-government organisations (NGOs) and social activist on the efforts done in addressing the problem. Due to the lack of a specific policy on teenage pregnancies in Malaysia, there have been concerns on issues related to the rights of these teenagers to education during pregnancy; criminal issues on abortion, infanticide and child sexual grooming; child marriages and the lack of support from parents, family members and the society for care, motivation, healthcare and preparation for motherhood among these teenagers. The findings establish the current support system is inadequate to meet the contemporary needs of pregnant teenagers. It is suggested that a comprehensive legal framework for teenage pregnancies in Malaysia needs to be put in place. These can include legislating necessary laws and policies, which can be more effective through integrated services and proper monitoring and enforcement in order to meet the current needs of the targeted group
Discriminatory Customary Practices Against Women’s Rights: An Account Of Intervention Strategies By Southern African Developing States
Full text linkDiscriminatory customary practices against the protection of gender rights still thrive in many Southern African developing states despite domestic and international legal regimes to prevent them. These practices were borne out of customary inclinations of the patriarchal social system in most African communities, which hold women and the girl-child in perpetual subordination to the male. In other words, the African customary systems wrongly perceive the male gender as being naturally superior to the female. More so, the loopholes in the executive and legislative efforts to combat human rights abuses as well as judicial pronouncements and governmental apathy in eradicating abuses against gender discrimination towards women in the Southern African developing states are apparent. Consequently, discriminatory customary practices continue to thrive despite legislative framework protecting gender rights in the states. The methodology adopted in this paper is a doctrinal approach, which places reliance on legal materials that are enacted and enforced by African Developing states. The article examines international and states laws, norms, institutions, international and national publications and other international legal instruments relating to gender discrimination. Most importantly, the central attention of this study focuses on the discriminatory customary practices against women in the Southern African Developing States. The current study finds that, despite identifiable discriminatory customary practices which are still practised and condoned as being the lifestyle and tradition of groups are criminalized and declared abhorrent by specific domestic legislation of nations, the human rights of the girl-child and women continue to be in chains and fetters. In conclusion, this article advocates increased advocacy, judicial activism and more proactive legislative action that protect women and the girl-child in the Southern African developing states
CORPORAL PUNISHMENT IN MALAYSIAN PUBLIC SCHOOLS: LEGAL AND EDUCATIONAL PERSPECTIVES
Full text linkThere is a need to consider whether the current school environment cum climate and punishment for indiscipline or behaviour management in Malaysia is relevant and effective in the current age. Foundational values primarily begins at home and in schools. In this regard the school is viewed not only as a place of learning but as a community of relationships where bonds are built where characters and values are shaped. It needs to be a conducive environment for the successful realisation of the Malaysian Education Blueprint (2013-2025) to develop value driven, tolerant and responsible Malaysians. It is a place to nurture inclusivity, respect for the person, consideration, cooperation, respect for diversity, unity, trust and other values desired under the Education Ministry. In this regard, this paper argues that Malaysia Education (School Discipline) Regulations 1959 which was made under a repealed Act need to be reconsidered for its effectiveness. The impact of corporal punishment and violence on children is covered in this paper in addition to relevant court decisions involving teachers and schools. Malaysia has acceded to the Convention for the Rights of the Children, this paper explores the compatibility of the convention with the School discipline Regulation 1959
Refining Maritime Boundary Delimitation Methodology: The Search for Predictability and Certainty
Full text linkFor decades, the maritime boundary delimitation methodology remains uncertain and confusing. This is as a result of the sole reliance on equitable principles, total disregard of the equidistance method in the North Sea Continental Shelf cases and vague provisions of United Nations Convention on the Law of the Sea (UNCLOS) 1982 in particular on the delimitation of the exclusive economic zone and the continental shelf. The main objective of the present article is to investigate how the delimitation methodology could be refined to be more predictable and certain through the flexible interpretation of the conventional law by the decisions of international courts and tribunals. The article first of all traces the codification history of the UNCLOS 1982 in order to ascertain the view of States expressed during the drafting process, which reflected the bitter rivalry between the two camps of equidistance and equitable principles. The article then makes a painstaking analysis of the decisions of international courts and tribunals since 1990s to the most recent one and finds that the equidistance principle has been reinstated as a basic methodology in maritime boundary delimitation, supplemented by relevant circumstances, in order to achieve an equitable solution. The article concludes that the search for predictability and certainty in maritime boundary delimitation has, to some extent, been achieved in the form of the recent three-stage approach, although there are still grey areas where significant uncertainty remains
Scrutinising the Developer's Sale and Purchase Agreement by the Purchasers’ Solicitor as required by Section 84 of the Legal Profession Act 1976 - Part II
Full text linkThis article was conceived by as an object lesson on how Islamic teachings may be incorporated into the Civil law to improve its moral contents. It was written in memory the author’s son Muhammad Zayd bin Bohorudin (1985-2017), advocate and solicitor, and alumnus of the Ahmad Ibrahim Kulliyyah of Laws (‘AIKOL)’. It is a continuation of Part I, published in the IIUM Law Journal Vol. 26 (2) 2018.
In this part, the issue of constitutionality of the developer using the purchaser’s property to secure loan is discussed. It furthermore examines the defects and weaknesses in the operation of several clauses in the Act to the purchaser. Other key issues discussed are the criticism on the house purchase loans, the purchase price and other expenses, the post-execution position of the purchaser as beneficial owner, construction issues, and the developer’s first duty, namely to give clean title to purchaser. At a later part of the article, the position of purchasers in relation to the abandonment of the housing estate, foreclosure, private sale and other disasters are scrutinised. Purchasers’ rights pertaining to the completion of the construction, transfer and registration of the house, as well as their right to life vis-à-vis housing matters are assessed
THE CODE OF MUSLIM PERSONAL LAWS OF THE PHILIPPINES: BEYOND THE LENSES OF BONDAGJY v. BONDAGJY
Full text linkThe dynamics of mixed marriages governed by the Code of Muslim Personal Laws of the Philippines (Muslim Code) creates variables that sometimes lead to the non-application of the said Code to Shari’ah cases arising from said marriages. This is highlighted in the familiar but controversial case of Bondagjy v. Bondagjy, wherein the Supreme Court of the Philippines did not apply the Muslim Code on the issue of custody of minor children born to a Muslim marriage prior to becoming ‘mixed’ by the conversion of the female party (Muslim convert) to another religion. The article argues that whatever variables are attendant in a specific conflict of rights where the Muslim Code applies, the resolution of said conflict must be in accordance with its provisions or other applicable Muslim laws. This perspective sustains the character of the Muslim Code as the applicable law in each Shari’ah case and disfavours the diminution of said character by the non-application of the Muslim Code. The article further argues that the application of the provisions of the Muslim Code affecting conflict of rights must be reinforced with the requisite good faith and honesty on the part of each party, Muslim and non-Muslim alike, to ensure a just and fair resolution of each Shari’ah case. The article achieves its gist by evaluating how the ‘applicability clause’, the ‘construction and interpretation rules’, and the ‘conflict of provisions rules’ of the Muslim Code operate in the context of and beyond Bondagjy v. Bondagjy and other relevant cases. This critical analysis highlights the present status of the Muslim Code as the initial premise in the formulation of measures that are responsive to and promotive of the role of mixed marriage as a significant avenue for Muslim and non-Muslim relations in the Philippines and other foreign jurisdictions where similar relations exist
AN ANALYSIS OF THE GOOD FAITH BARGAINING PRACTICE IN THE TRADE UNION RECOGNITION PROCESS: REFORM OF THE MALAYSIAN TRADE UNION LEGAL FRAMEWORK
Full text linkThe trade union recognition process is a pre-requisite to the collective bargaining action of a trade union. The recognition is important to ascertain the competency of a trade union and the acceptance by the workers to represent them in the collective bargaining action with the employer. However, the ambiguities in the existing legislations on the trade union recognition process in Malaysia and the anti-union practices of the employer are currently depriving the workers of their rights to negotiate for better working conditions. The primary focus of the present work is to identify the weaknesses of the recognition legal framework and the anti-union practices of employers in the recognition process of trade unions. Secondly, is to critically analyse the good faith bargaining practice in other countries and its significance to the recognition process in Malaysia. To explore the anti-union tactics perpetrated by employers, semi-structured interviews have been conducted to analyse the trade unions’ experience in their recognition claims. This research employed a qualitative approach as the instrument to study the good faith bargaining practices in the Australian and New Zealand labour law framework. The findings reveal that the good faith bargaining practices in Australia and New Zealand have improved the odds for trade unions to represent the workers in negotiating collective agreements. The study finally concludes that in order to reform the recognition process of trade unions in Malaysia, the good faith bargaining practice should be implemented in the nation’s industrial relations law framework
