International Islamic University Malaysia (IIUM) Law Journal
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SUPREME COURT’S JUDICIAL REVIEW AUTHORITY VS. CONSTITUTIONAL SUPREMACY IN THE MALDIVES: DOES THE CONSTITUTION STILL REIGN SUPREME?
Full text linkThe Supreme Court of Maldives is entrusted with the responsibility of upholding the supremacy of the Constitution. However, within the last ten years, the Supreme Court has been criticized for the Court’s slow but steady progression to encroach on the powers of the parliament and as a result, undermine the supremacy of the Constitution. The objective and purpose of this article are to entail how the Supreme Court of Maldives had utilized its power to judicial review to undermine the supremacy of the Constitution over the years. This article uses library-based research. It analyses the principles of separation of powers, checks and balances and judicial review and how these principles are adopted in the Maldives. In addition, this article reviews and analyzes the decisions of the Supreme Court which are in contradiction to the Constitution. The findings of the article are evidential of how the Supreme Court had performed the constitutionally mandated legislative functions of the parliament through the Court’s power to judicial review. The Supreme Court had established guidelines, regulated the rights and freedoms specified in the Constitution, and determined procedures. This article concludes by emphasizing the importance of exercising restraint when performing the constitutionally mandated functions of each branch, in order to ensure the supremacy of the Constitution as well the effective functioning of the three branches of government
TOWARDS ENFORCEABLE STANDARDS, RULES AND RIGHTS IN STRATA MANAGEMENT: AN ANALYSIS
Full text linkThe Strata Management Act 2013 (Act 757) and the Strata Titles Act 1985 (Act 318) confer broad powers on strata communities to self-manage and self-regulate through body corporates (termed Strata Management Bodies). The policy behind these legislations promotes maximum autonomy and self-regulatory powers for Strata Management Bodies to, through their internal rule-making and decision-making processes, govern themselves in ways that best suit their needs and interests. Consequently, judicial and administrative recognition of Strata Management Bodies’ autonomy has left a lacuna of matters which are not justiciable by the Courts and/or the Strata Management Tribunal. This adversely affects homeowners’ ability to access substantive justice. This article, through doctrinal analyses of key Malaysian and Western Australian cases, sheds light on a selection of strata disputes illustrating the inadequacies of the law on strata title and strata management, and the lack of enforceable standards of good management practices. The article also explores how the apathetic application of general principles of company law to strata management bodies has left a lacuna of non-justiciability. Consequently, this article argues the case for strata law reform. It advocates for law reform that promulgate standards, rules and rights of good strata management as enforceable law, rather than mere general, high-level, unenforceable and unjusticiable principles
MONETARY COMPENSATION AS A REMEDY FOR UNFAIR DISMISSAL: A STUDY IN UNITED KINGDOM AND MALAYSIA
No full textAlthough unfair dismissal is not considered as a new issue in the current era, it may nevertheless severely affect the employees' right to earn a salary and other benefits such as retirement saving, among others. In order to recompense the employee's rights of employment, the legislature in many jurisdictions has introduced reinstatement as the remedy for unfair dismissal. Unfortunately, reinstatement is not awarded in most cases due to the long delay from the date of dismissal to the date of an award which may take a few years, where in the meantime the claimant may have comfortably settled in his new employment and in most cases would not desire reinstatement. Realising the above, the legislature has allowed the alternative remedy of monetary compensation for unfair dismissal. In fact, today, monetary compensation has become the remedy in both Malaysia and the United Kingdom. The Employment Rights Act 1996 of the United Kingdom recognises several remedies for unfair dismissal such as reinstatement, re-engagement, and monetary compensation. On the other hand, the Malaysian Industrial Relations Act 1967 merely provides reinstatement as the remedy for unfair dismissal; however, monetary compensation has been allowed vide the Industrial Court Practice Direction No. 1 of 1987, to be awarded at the discretion of the Industrial Court Chairman. In light of the above, this article discusses the awarding of monetary compensation in the United Kingdom and Malaysia with reference to legislation and decided cases in the above jurisdictions.
 
AN APPRAISAL OF THE APPLICATION OF FIQH AL-HANAFI UNDER ISLAMIC FAMILY LAW (FEDERAL TERRITORIES) ACT 1984
Full text linkMalaysia is a Muslim country consisting of thirteen States and Federal Territories (Kuala Lumpur, Labuan and Putrajaya). In principal, the official madhhab that is practised in Malaysia is Shafi’i Madhhab and this becomes common to all Malaysians even though it is not officially registered in the identification card of a Malaysian. Accordingly, in many religious affairs and practices, the society is based upon the principles or fiqh al-Shafi’i. Nevertheless, views of other Sunni madhhab is freely practiced by all Malaysians. Furthermore, the codification on Islamic law in the State Enactments in all States in Malaysia is based upon four Sunni schools of law. It follows that the Islamic law in Malaysia is not purely based on the Shafi’i madhhab and in many occasions adopted the view of Hanafi school depending on the adaptability of the opinion to the society. This article deals with the application of fiqh al-Hanafi under the Islamic Family Law (Federal Territories) Act 1984. Analysis will extend to the practices in the Malaysian Syariah Court when dealing with cases involving Muslims and the most appropriate view of the madhhab that is to be adopted by the Syariah Court in order to solve a particular issue. The study employs the qualitative method of study where it only involves library research. It is believed that this research will be beneficial to all who seek knowledge and useful to all researchers, academicians, legal practitioners, students and scholars
MALAYSIA AND THE ROME STATUTE: THE ISSUE OF SOVEREIGNTY
Full text linkThe announcement of Malaysia’s accession to the Rome Statute on March 4, 2019 was met with strong objection by the opposition and some stakeholders. One of the main arguments made by those who opposed the Rome Statute was that “it will, in the end, destroy national sovereignty.” Although the argument appears to be political rhetoric, it has already injected confusion among the general public and painted a dark picture that the Rome Statute is a hegemonic law that will rob Malaysia of its sovereignty. The main purpose of the present paper, therefore, is to set the record straight and to prove the simple fact that entering into a treaty is in fact a clear exercise of a State’s sovereignty and not to lose sovereignty. Firstly, the paper reappraises the concept of sovereignty: in its original form and its evolution from 16th century to 21st century, on the basis of State practice, doctrine and judicial pronouncements. Secondly, arguments against the Rome Statute made by some powerful States are analysed and rebutted. Thirdly, Malaysia’s situation is objectively evaluated in the light of a comparison between the Rome Statute and other onerous treaties to which Malaysia has already been a party. The paper concludes with the findings that States with their own free will restrict their sovereignty to subject themselves to international law and that Malaysia by no means will lose its sovereignty by acceding to a treaty. Most importantly the Government must prioritize the need to convince the people that it is the right thing to do – it is beneficial to the people of Malaysia or it can achieve the higher aim of protecting humanity
What Makes a Law “Islamic”? A Preliminary Study on the Islamicity of Laws in Malaysia
Full text linkThere exists a good deal of misunderstanding regarding laws in general. Some laws are categorised as civil or common laws even though their contents are Islamic while others are labelled Islamic but they fail to meet the standards required by Islamic law. This article discusses the characteristics, which make a law, “Islamic”. Based on a content analysis of the revealed sources, the opinion of the majority of Muslim scholars, and the relevant court cases, this study argues that a law does not become Islamic by merely claiming it to have been derived from or somehow related to the divine revelation. It is true that for any law to be Islamic, it must indeed be based upon the divine revelation, and supported by Muslim jurists. Nevertheless, it must also simultaneously be promoting justice for everyone, irrespective of race, religion, gender, social, economic or political status. The law must also be of benefit to all mankind and not only to the Muslims. Finally, the law must fulfil the requirements of MaqāÎid al-sharÊ‘ah (objectives of the law). Judged as such, most of the Malaysian laws may be considered to be Islamic, by nature. These aspects have not been given due attention by many scholars, which leads either to the condemnation of all laws in Malaysia as secular or as un-Islamic. This fact alone justifies the need for a study to provide guidelines to judge the Islamicity of a certain law, which is done herein
KEY PERFORMANCE INDICATORS AND EMPLOYMENT CONTRACTS IN MALAYSIA: A LEGAL ANALYSIS
Full text linkKey performance indicators (KPIs) are considered as measurable values used by for companies, institutions, or organisations in order to estimate the success rate of their set objectives. Therefore, it is important to select appropriate indicators that will be used for the measurement. In Malaysia, the KPI came into the spotlight when the Prime Minister introduced it for measuring the performance of the cabinet ministers in 2009. Since then, KPIs became the focus in the private and the public sectors in Malaysia. Thus, this article attempts to examine the values behind KPIs and its function within the contract of employment. The article further examines whether non-performance of KPIs can be categorised as poor performance, which could open employees to termination or disciplinary actions. This article is mainly based on the analysis of existing literature, journal articles, books, information obtained in online news portals and judicial decisions. The article finds that non-performance of KPI can be used as a basis to terminate or dismiss an employee from employment
EXAMINING THE EVOLUTION OF WAQF REGULATIONS IN SELANGOR: AN ANALYSIS OF THE GOVERNANCE FRAMEWORK AND TRANSFORMATIVE APPROACH
Full text linkThe inadequacy of comprehensive laws for Waqf administration is one of the main issues that has limited the development of Waqf in Malaysia. Whilst most states in Malaysia rely on their Administration of Islamic Law enactments, in 1999 Selangor pioneered a Waqf enactment which specifically oversees Waqf administration and management. With the promulgation of the Selangor Waqf Enactment 1999, the administration of Waqf in Selangor became more regulated and structured. However, as matters pertaining to Waqf practices became more complex, Selangor repealed its 1999 Waqf Enactment and replaced it with the 2015 Waqf Enactment. This research therefore analyses the evolution of Waqf in Selangor through the two respective enactments, by identifying the changes in practices and scrutinising the rationales for the development of the laws. It also analyses how the laws have impacted the Waqf governance framework in the state. By assessing the position of the 2015 Waqf Enactment, it determines whether the current legislative demand posed by Waqf development in the state is met and whether the change in approach should be followed by other states in Malaysia. Doctrinal legal research is utilised to examine the two enactments respectively. Legislative Assembly Proceedings related to the promulgation of the respective enactments were also examined to further understand the reasoning behind the repeal and the introduction of certain provisions. It is found that although the 2015 Waqf Enactment is more comprehensive than the 1999 Waqf Enactment, further improvements can be made to better achieve transparency and accountability on the part of the Waqf administrators
EMBRACING INTERNATIONAL HUMAN RIGHTS LAW: THE MALAYSIAN EXPERIENCE IN NAVIGATING THE DUAL QUALITY OF INTERNATIONAL LAW
Full text linkInternational human rights law, as with the setting up of the United Nations at the end of the Second World War, promises in the dignity and worth of the human person of nations large and small. International human rights law supposes to save the world population from the scourge of war, despots and other miseries. The international legal order after the end of the Second World War also promises equal sovereignty where all states are equal under international law in spite of inequality of population size, resources and military might. International human rights law thus applies to all states, to protect all populations. International human rights law has been used to liberate colonies and to protect people from oppression. The universal nature of international human rights law means that it applies to all nations large and small. However, the very fact that it is universal also is troublesome when in its application, the Eurocentric understanding of human rights is imposed on all. This paper looks both at the acceptance of Malaysia of international human rights law and her schemes in determining the place for universalism in the application of the law
An Appraisal of the Application of the Concept of Pre-Emption (Shuf’ah) under the Nigerian Laws
Full text linkThis article discusses the applicability of the Islamic concept of pre-emption (shuf’ah) under the Nigerian laws. Pre-emption is the first right of a neighbour to purchase an immovable property. This right is available so that a stranger is not introduced as a neighbour,which may cause a hindrance to their privacy. The aim of this article is to examine the significance of pre-emption, which includes: maintenance of a peaceful co-existence in a society; realization and protection of neighbours right; and ensuring the consent of new neighbour over the new owner. In this article, the concept of pre-emption is analysed in the context when it is applied to the Islamic law of succession. Aside from that, the article also looks into the intricacies of its application in Northern Nigeria