International Islamic University Malaysia (IIUM) Law Journal
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The Harvard’s Brain Death Criteria as a Basis for the Withdrawal of Life Support Machines: A Response from Islamic Law
Get PDFPatients in coma or vegetative state are usually dependent on life support machines or system, until they either recover or pass away. However, the story is no longer the same today, as patients thought to be in coma or vegetative state are usually disconnected from such machines, in order to save cost. Apart from disconnecting them from the machine, they are equally denied food and drink, being basic necessities of life. This is resorted to in order to quicken the pace of death. Health officials have always relied on the Harvard’s brain death criteria as the basis for their actions. Research has however shown that the said brain death criterion is not reliable after all. Thus, this article examines the justifiability of the brain death criteria as the basis for the withdrawal of life support machines. In doing so, the article provides the Islamic view point on the issue. It will at the end, show that, indeed the brain death criterion is faulty and should never be the basis for the withdrawal of a patient’s life support machine, denied food and drink and denial of medical treatment.
Socio-Legal Significance of Family Waqf in Islamic Law: Its Degeneration and Revival
Get PDFFrom a Shari’ah perspective, no essential difference is noticed between public welfare waqf and a waqf created for the benefit of individuals such as descendants and family of a person, and both are treated as recommended avenues for voluntary gratuitous transfer of benefits. Over the centuries, family awqaf have degenerated due to various social and political factors. Under the influence of the English law that regards family trusts as non-charitable, family awqaf have been treated as non-charitable institutions, and have been deprived of the privileges and immunities granted to charitable awqaf. In this context, the current article discusses the essential nature of such awqaf with regard to their position in Islamic law and history as well as their social significance, and attempts to shed light on the degeneration that took place in the recent past, while exploring means of revival. It finds that the creation of endowments for specific beneficiaries such as waqf for those related to the endower is a recognised form of charity in Islamic law, that function as public serving entities directly or indirectly. Issues encountered in such awqaf do not necessitate denying their multiple advantages. Providing the necessary legal regulation and administrative framework as well as tax exemption for all awqaf could go a long way in promoting the cause of waqf.
The Inviolability of Medical Confidentiality in Malaysia: An Analysis of the Rules and Exceptions
Get PDFThe duty of medical confidentiality has been one of the core duties of medical practice as information created, disclosed, acquired directly or indirectly during the doctor-patient relationship is considered confidential and requires legitimate protection. Further, preserving confidentiality on the premise that the relationship between doctor and patient has been built on trust and confidence renders the duty to be seen as sacrosanct. The source for this duty can be found not only in the Hippocratic Oath, codes of ethics, religious tenets but also in the common law, principles of equity and statutory provisions. Nevertheless, technological advancements and the growth of social networks have contributed to the difficulties in preserving confidentiality as the information gathered tends to become vulnerable in unsecure environments. However, the duty of medical confidentiality is by no means absolute as it can be breached in situations in which there are stronger conflicting duties. This article discusses the rules governing the duty of medical confidentiality and the exceptions in which infringements to this duty become justified. It also gives an overview of the duty of confidentiality under Islamic law. It concludes that the inviolability of this duty may be without doubt but circumstances warranting its disclosure are crucial to serve the interests of justice
Multilateral Development Banks and Law and Development Projects in Asia: Experiences and Directions
Get PDFBeyond their traditional lending in sovereign and non-sovereign operations in sectors such as infrastructure, agriculture, and social services, multilateral development banks (MDBs) have included law and development projects in line with their mandates on economic development and poverty reduction. The spectrum of law and development activities has been broad-ranging from strengthening legal education to enhancing debate on judicial independence to promoting judicial reform projects and supporting initiatives on environmental justice. This article examines the roles played by MDBs in promoting law and development, and analyses four case studies of law and development projects (two from the World Bank and two from the Asian Development Bank). The article summarises the experiences learned by these institutions over the years and discusses the directions taken. The article concludes with recommendations on the measures that can be taken by these institutions, as well as other organisations, in continuing to engage with law and development projects
Entrusting Coast Guards with Maritime Law Enforcement Powers: Lessons for Malaysia
Get PDFIn view of many and varied maritime threats and growing number of maritime crimes, it is necessary for States to have coast guards with maritime law enforcement powers to secure their maritime territories and protect maritime interests. Modern coast guards play a crucial role in sustaining maritime security and their operations have become more and more sophisticated. However, in the case of the Malaysian Maritime Enforcement Agency (MMEA), commonly known as the Malaysian Coast Guard, it is found that it is still struggling even after 12 years of its establishment to achieve its primary objective of becoming a single maritime law enforcement agency in Malaysia. The present study finds that there seems to be a veiled competition between the MMEA on one side and the other law enforcement bodies on the other. An analysis of the practice of coast guards of the USA, India and Japan is made to find a solution to this crucial issue revolving around Malaysia’s maritime security. The study finally concludes that the controversial section 7(3) of the MMEA Act should be amended to clearly entrusting the MMEA with, and excluding other relevant agencies from, maritime law enforcement powers in the Malaysian maritime zones. Maritime security, maritime law enforcement, coastguards, MMEA, marine polic
Incorporating the United Nations Protocol on Trafficking in Persons in the Malaysian Legal Framework
Get PDFThe international framework of anti-human trafficking has become the main guiding framework for countries around the globe in combating the crime. The issue of human trafficking was brought to global attention mainly by the Protocol to Prevent, Suppress and Punish Trafficking in Persons especially Women and Children. The UN Protocol provides a standard approach to state parties in combating human trafficking. The approach is known as “3Ps” model which aim to prevent the crime, to protect the victim and to prosecute the perpetrator. In spite of the creation of Anti-Trafficking National Action Plan (NAP) in 2012 and the passing of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 (ATIPSOM 2007) by the Malaysian government in the US Department of State Trafficking in Persons Report 2014 (TIP) it is stated that “3Ps” approach is lacking in the Malaysian legal framework. This paper analyses whether Malaysia’s legal response through its Anti Trafficking in Persons and Smuggling of Migrants Act 2007 and other relevant legislation are in compliance with the Protocol. In this study it is found that there are many aspects of rights and protection still wanting within the legal framework of human trafficking in the country. Reformation of Malaysia’s legal framework in combating human trafficking is much needed to ensure its compliance with the international framework and in order for the local enforcement agencies to be more successful in combating the crime
The Precautionary Approach to the Installation of Telecommunication Masts in Residential Areas in Nigeria: A Legal Response
Get PDFThe advent of Global System for Mobile Communication (GSM) in Nigeria has brought immense advantages to the social and economic activities in the country. Despite the various advantages, the installation of telecommunication masts and base stations in residential areas has led to anxieties, fears and debates about the possible adverse effects on human health as well as security of properties. Instead of addressing the fears, the telecommunication companies continue to install telecommunication masts and base stations in the residential areas unabated. The article assesses the impact of these installations on health and properties of the residents in order to consider the reality of the fears and examines Nigerian laws to find out whether there are regulations that control how telecommunication masts are to be installed in residential areas to prevent health and property threat to the inhabitants. The article employs both doctrinal and non-doctrinal approaches of the qualitative legal research method by analysing legal and relevant texts and by conducting site surveys as well as unstructured interviews with residents who live near telecom masts
The Effects of Apostasy on the Entitlement to Property upon Death: The Malaysian Position
Get PDFApostasy has always been a controversial issue in Malaysia. It inevitably leads to certain consequences and implications including the right of inheritance upon the death of a person. However, many do not have adequate knowledge on apostasy and its implications. This is especially seen among non-Muslims. Hence, misunderstanding and wrong perception towards Islam is further perpetuated. This article focuses on the implication of apostasy in the entitlement to property upon death both of a Muslim as well as an apostate. A discussion is also made on certain legal aspects of apostasy in Malaysia, which includes the problems of jurisdiction and administrative constraints in giving effect to the implication of apostasy in the entitlement to property upon death. The article analyses available literature on apostasy in Islam in the forms of textbooks, articles, seminar papers and decided cases. The main objective of the article is to address relevant contemporary issues on apostasy in Malaysia especially to its implications on entitlement to property upon death of either the apostate or his relative
The Applicability of Administrative Law Principles to Issues of Privatisation in India
Get PDFPrivatisation is an exclusive subject of governmental policy in several countries. The reasons for privatisations may mainly be political and economical; nevertheless, it raises many legal questions. Apart from the constitutionality and legality of the decision on privatisation there are public law issues in administrative law that usually crop up with privatisation decisions. The principle aim of this article is to examine the applicability of administrative law principles in privatisation. In the initial part, the article examines the phenomenon, various approaches towards privatisation, its rationale and limitations. Subsequently, the article analyses different types of privatisation. It also portrays various interfaces between privatisation and administrative law with special reference to India. In the last part, the article is summed up with an appropriate conclusion and suggestions.
Parental Child Abduction In Malaysia: Is Everything Right with Our Domestic Laws?
Get PDFParental child abduction is an unacceptable and condemned act due to its bad implication caused especially on the child. Nevertheless, it was hard to charge parents for absconding or stealing their own child for a long accepted tradition and settled rule that both parents have equal rights over the child. Both would have justifications for their act to be considered as good and bad for the child even to the extent of abducting him or her from the other parent. However, as time passed, the laws particularly, family and criminal law, have also developed to face rapid changes in the family institution. The need to reform the laws for want of jurisdiction or lack of uniformity or adequacy of laws on a certain matter were among the result of the changes in family pattern. Experience from cases showed that it was very hard for any parent to get back his or her child once the subject has been brought outside the country. Thus, this article is aiming at scrutinising the domestic laws of Malaysia, particularly the family and criminal laws on parental child abduction as well as its enforcement aspect by referring to the relevant provisions and the decided cases. Suggestions are provided to strengthen the law and its enforcement aspect, being a tool to prevent parental child abduction.