International Islamic University Malaysia (IIUM) Law Journal
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Indigenous Land Disputes and Law Reform in India: Lessons for Malaysia
Get PDFDisputes on indigenous land rights are a continuing issue in Malaysia which needs to be addressed. Apart from the common law recognition of the land rights of the indigenous peoples, they are increasingly and widely recognised, both, under national and international laws as a stakeholder in the natural resources located within their areas. Since 1992, there has been a dramatic increase in legislation around the world recognising the rights of indigenous peoples and communities to forest lands and resources. An interesting law reform exercise has taken place in India with the introduction of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 (FRA) to address the claim of the indigenous peoples to forest resources. India is relevant as a comparison to Malaysia as both share some common political and legal features. Using a comparative approach, this article analyses processes and mechanisms adopted in the relevant law reform in India and its relevance to Malaysia. Comparative perspectives provide models for practical applications of indigenous peoples’ rights. These will assist policy analysis through learning from the successes and failures of other jurisdictions in improving legal reform. This article provides a new perspective in addressing the issue of land disputes involving the indigenous peoples in Malaysia which is significant to the policy and law reform on this issue.
THE CONTINUING DEBATE ON DEATH PENALTY: AN EXPOSITION OF INTERNATIONAL, MALAYSIAN AND THE SHARI'AH PERSPECTIVE
No full textThe debate on the death penalty seems endless. Some see the death penalty as a form of human rights violation, while others consider it as a means to preserve and protect the rights of others. This article provides an exposition of the death penalty from the international, Malaysian and Shari‛ah perspectives. In doing this, a brief philosophy of human rights is given. Many international legal instruments, provisions of the Malaysian Federal Constitution and other relevant statutes, court decisions and the Qur’anic provisions and Sunnah are used to enrich the discussion. The study finds that the international instruments do not forbid nor encourage the death penalty. Thus, the experience of each country may contribute to the status of this capital punishment; some countries are still retaining it, while some others have repealed the punishment. Be that as it may, the Islamic legal position on the punishment remains unchanged but its application may be varied to suit different times and situations
RULE OF LAW: AN INITIAL ANALYSIS OF SECURITY OFFENCES (SPECIAL MEASURES) ACT (SOSMA) 2012
Get PDFThe term ‘Internal Security Act’ is often given to a piece of legislation laying down regulations that enable the executive government of a jurisdiction to preserve the internal security of the nation. In some jurisdictions, it authorises the government to arrest and detain individuals without trial. The Malaysian Internal Security Act (ISA) 1960 was originally enacted by the Malaysian government in 1960 under Article 149 of the Malaysian Constitution. However, there were numerous concerns raised as to the implications of this Act at various levels over the years and this led to it being repealed. On 15 September 2011, ISA 1960 was repealed and replaced by the Security Offences (Special Measures) (SOSMA) Act 2012. SOSMA 2012 was enacted in answer to the criticism of the ISA 1960 and it does show some positive changes. However, the debate as to the concerns with regards to ISA has not been laid to rest. It is advocated and generally accepted by most people around the world that the nation’s emphasis on domestic stability cannot be said to negate the presence of the Rule of Law (RoL). The purpose of this research is to analyse the relatively intriguing new Act, the SOSMA 2012 with the specific objective to identify whether it upholds the principles deemed necessary under the RoL.
AIRLINE PASSENGERS’ SCREENING: AN APPRAISAL FROM THE ISLAMIC LAW PERSPECTIVE
Get PDFThe alarming rate of aviation offences such as the offence of aircraft hijacking in the 21st century warrants the need to adopt various preventive and suppressive measures to prevent these offences. The current method to prevent and suppress these offences is to subject every passenger to screening of their body and baggage through the imaging technologies and physical searching called “pat down”, the purpose of which is to detect the presence of weapons, explosives and other dangerous materials that will aid the commission of any of these offences. As a sequel to the adoption of these methods, many queries have been raised especially from the human rights activists who argue that the so-called imaging technologies intrude on the fundamental human rights of passengers. While some passengers support the argument of the activists, others are in support of the aviation security practitioners. The question therefore is: what is the position of Islamic law on the screening of airline passengers using imaging technology? The present article intends to answer this question
Legislating for Cybercrimes in the Maldives: Challenges and Prospects
Get PDFThe growth of Information and Communication Technologies (ICT) has changed the way of life for many people in the Maldives. Unfortunately, with the benefits also comes the threats. The use of ICT have added new dimensions of threats such as online fraud and forgery, hacking into protected systems and dissemination of pornography. Hence, deterring cybercrime is crucial for the national security of the country. Adoption of an appropriate legislation to protect from abuse of ICTs for criminal purposes should be the highest priority for the legislators, as the speed of advancement of ICTs have challenged many areas of existing legislation. This article studies the legislative approaches used to regulate cybercrime, using the cybercrime offences highlighted in the Cybercrime Convention. The cyber laws of England and Australia are discussed comparatively in order to identify whether the existing law is adequate, needs to be modified or there is a need for new laws to be enacted in the Maldives. This article is divided into five parts. Part one makes a brief introduction to the existing Maldivian regulatory framework. The second part of the article discusses the need for reform in the country and the lacuna in the existing penal legislation. The third part will examine the areas where modification or new laws are required. This will lead to the fourth part of the article which identifies the legislative approaches that needs to be taken in order to regulate cybercrime by relying on the Cybercrime Convention as a guide. Finally, the fifth part of the article concludes by recommending new provisions or modifications whichever is necessary to adequately address the issue of cybercrime
ANTI-TERRORISM FINANCING LAWS IN MALAYSIA: CURRENT TRENDS AND DEVELOPMENTS
Get PDFMalaysia has continued to proactively enhance its legal framework for combating terrorism financing as a phenomenal response to the global war against terrorism. This paper revisits the provisions relating to anti-terrorism financing in the Anti-Money Laundering and Anti-Terrorism Financing Act 2001 (AMLATFA), and the recent amendment made to the Act in 2014, as well as the Penal Code of Malaysia. While this study focuses on Anti-Terrorism Laws in Malaysia, AMLATFA forms the crux of the discussion in the light of current developments in anti-terrorism legislation in Malaysia. A brief Islamic legal perspective on anti-terrorism financing is given in the light of specific provisions of AMLATFA and the Penal Code. The paper finds that Malaysia is keeping up with the global developments in Anti-Terrorism Financing laws and this has helped it to maintain a good image in the global world as a country that is ready to combat terrorism generally and terrorism financing specifically. With the emerging threats of the self-styled Islamic State in Iraq and Levant (ISIL) in Malaysia and the world at large, there is no better time than now to come up with a more comprehensive law such as the Prevention of Terrorism Act 2015 to complement existing legislations on terrorism financin
The Scope of Taxation of Income from Illegal Activities in Selected Common Law Jurisdictions
Get PDFThe taxation of income from illegal activities is well established in several common law jurisdictions. In the broader sense income or profits from a trade, profession or vocation irrespective of the issue of legality will be taxable. The courts have drawn a distinction between cases where normal income producing activities become illegal due to non-compliance with licensing requirements or acting in contravention to a ban in trading on one hand and profits acquired as a result of the commission of systematic crimes such as burglary on the other hand. Income from the latter source is not taxable. The objective of this paper is to argue against such a distinction, to highlight the problems inherent in computing income from an illegal source and to examine the difficulties in formulating rules governing the deductibility of expenditures incurred in earning income from illegal activities
Towards An Effective Legal And Regulatory Framework for Public-Private Partnerships in Malaysia: Lessons From the South African Experience
Get PDFIn order to ensure a sustained cooperation with both the local and international private investors in Malaysia especially in the provision of public infrastructure, the government needs to develop very strong legal and regulatory capabilities which will help in providing stable institutional environment for private investment. At the same time, there is the need for commitment on the part of government to the regulatory rules so that they are perceived as credible by investors. Where the legal regime is weak or non-existent, private investment decisions will be adversely affected. No doubt, South Africa has developed one of the best legal and regulatory regimes for efficient procurement systems in the world and the project pipelines have greatly increased in recent times. This article therefore, examines the existing legal framework for Public-Private Partnership procurement in Malaysia and draws lessons from the South African legal regime. The article finally argues that for Malaysia to continue to attract and expand its investment atmosphere for the private sector there is the need for a clear and transparent legal and regulatory procurement framework which can seriously help in building confidence in the private sector and also guarantee their investment returns
The Attorney General as Public Prosecutor in Malaysia: from Quasi-Judicial to ‘Executive’
Get PDFThe Public Prosecutor (PP), as the chief criminal law enforcement officer, impacts directly on the public; hence the greater concern for his independence and integrity as exemplified by the security of tenure provision in the 1957 Federal Constitution. This article uncompromisingly holds that the Attorney General (AG) being ‘political’, as he is selected by, negotiates his contract with and may be dismissed by the Prime Minister, should be separated from the position of PP and protected from political interference. This article traces the history of the emasculation of the PP from Independence to the present. It looks at the travails of the AG/PP during the Mahathir years. One is bound to ask: how is the PP, who may be expected to enforce the criminal law against ordinary citizens, to do so against the head of government? It is based on statutory provisions and reported cases which involved the independence, powers and duties and security of tenure provisions and parliamentary debates (Hansard).