International Islamic University Malaysia (IIUM) Law Journal
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GAS FLARING IN THE NIGER DELTA OF NIGERIA: A VIOLATION OF THE RIGHT TO LIFE AND COMMENT ON THE CASE OF JOHNAH GBEMRE V SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED
No full textThe relationship between the protection of the environment and human rights was first established in the Stockholm Declaration of 1972. Since then, it has become acknowledged that human rights such as the right to life can only be enjoyed in a pollution free environment. It is on this premise that this paper seeks to examine how gas flaring, being one of the major environmental challenges in the Niger Delta, is affecting the right to life of the inhabitants. Materials are sourced from both primary and secondary sources to analyse the issues in contention. Data and information are extracted from the Amnesty International Report, United Nations Environmental Programme Report, and the United Nations Development Programme Report. Also, an analysis of the case of Johnah Gbemre v Shell Petroleum Development Company Of Nigeria Limited is done in order to evaluate the judicial response on this perspective
RECIPE FOR DISASTER? THE DEPLOYMENT OF PATENTS OVER ENVIRONMENTALLY SOUND TECHNOLOGIES
No full textThe development, deployment and dissemination of low-carbon and other environmentally sound technologies (ESTs) is critical in our response to climate change. Yet, many of these critical technologies are patented and belong to private entities. Malaysia through the National Renewable Energy Policy and National Green Technology Policy, aims to leverage on green technology as a double edge sword; as a tool to spur economic activities whilst at the same time ensuring sustainable development and conservation of the environment for future generations. In order to enhance the uptake of ESTs, Malaysia has identified renewable energy as an impetus. This paper explores the discourse between the patents and climate change at the international level. As the diffusion of ESTs requires modification and adaptation, the issue of how much this can take place without the consent of the patent owner is discussed. The scope of scientific research exemption in Malaysia is examined with a view of determining whether it can support research activities with commercial activities and the act of inventing around a patent. It is proposed that for effective transfer of ESTs to take place, the scientific research provision be expanded to cover all forms of research necessary for the diffusion of technology, regardless of its commercial and transformative end
CHILDREN FOSTER CARE LAW AND PRACTICE: WHAT MALAYSIA CAN LEARN FROM FOSTER CARE (IHTIDHAN) IN JORDAN
Get PDFFoster care is one of the means of child protection in Malaysia and in many other countries like Singapore, Australia, United Kingdom, Algeria, Egypt and Morocco. This is also highlighted in international legal documents like the United Nations Convention of the Rights of the Child (the CRC) which also recognise the Islamic law concept of foster care (kaffalah). Through foster care, a child is placed either in an institution or fostered by individual foster parents. This paper aims at examining the law and practice of individual foster care in Malaysia with a comparative overview of the law and practice in Jordan. The comparison is intended to assist development of better law and practice of foster care in Malaysia where suitable, relevant and necessary. The analysis focuses on certain suitable laws and practice of foster care in Jordan i.e. what Malaysia can learn from foster care in Jordan. The research is basically library research. A minor part of the research also involves interviews with the relevant officers on practices that are not documented. It is hoped that this paper will provide good suggestions for better protection of children in Malaysia through foster care
CONTRACTUAL TERMS IN MUSHARAKAH AND MUDARABAH RESTRICTING THE PROFIT SHARE OF A PARTNER OR FACILITATING LATER AMENDMENTS TO THE AGREED RATIO: A SCRUTINY
Get PDFEquity participation in joint ventures as envisaged in Shari‘ah consists of a business relationship based on mutual sharing of gains and liability. Such partnerships as prevalent in every sphere of commerce generally involve the possibility of unlimited gains for each partner in theory, without limitations attached to the amount of return to any single partner. A central pillar of the equity structure in Shari‘ah is the unbridled operation of the profit sharing ratio. Restriction of its application to a stipulated level of profits, thereby enabling a partner to claim unlimited profits while the profit share of the other is restricted to a maximum ceiling cannot be regarded to be consistent with the theory of equity participation. While such measures could realise some temporary benefit to Islamic banks, with continued practice, they could become deep-rooted in the concept of equity financing itself, thus making it operate subservient to debt financing norms. Islamic banks should attempt to alienate their identity from being lending institutions, a pioneer step towards which would be to implement a dynamic profit and loss sharing mechanism
THE CONVENTIONAL RESTRICTIVE AND THE MODERN LIBERAL INTERPRETATION OF SECTION 30 OF THE EVIDENCE ACT
Get PDFSection 30 of the Evidence Act allows the confession of an accused to be admitted against the co-accused. However, since it is a radical and dangerous departure from the rule that hearsay should not be admitted, the Indian and Malaysian Courts have not recognized such confession as falling within the definition of ‘evidence’. It can only be used as a last resort and hence has been strictly construed throughout. But Singaporean Courts have now given it a liberal construction and elevated it to the status of a rule of evidence. The researcher’s view is that this is dangerous and our courts should be wary of following Singaporean Courts’ judicial thinking
THE NEED FOR ESTABLISHMENT OF A FAMILY COURT IN MALAYSIA: AN APPRAISAL
Get PDFThe adjudication of family disputes by different courts with different jurisdictions in the present court system is ineffective in providing a comprehensive approach to the management of family-related disputes. Furthermore, the adversarial system of litigation of the present courts in Malaysia negates the possibility of resolving conflicts amicably. The establishment of a family court in Malaysia would be in line with the objective of the National Family Policy which encourages the sustainability of the family institution. Basically, this paper seeks to discuss the concept of family court and the need for its establishment in Malaysia. The paper will also briefly discuss the implementation of family court systems in Australia, Singapore and Egypt as these countries have a well developed family court system. The purpose is to learn from their experiences in providing a comprehensive solution to resolve family related disputes in Malaysia
CIVIL LITIGATION NEGLIGENCE AND THE MALAYSIAN ADVOCATE
Get PDFCivil litigation negligence now stands on a surer footingfollowing cases from Canada, England and elsewhere which lay emphasis on theadversarial system rather than the structure of the profession, and immunityhas now been almost completely abolished by judicial decisions. In Malaysia,the basis of legal professional liability is expected to be re-aligned to beconsistent with the other common law countries that have abolished immunity.The questions that necessitate consideration are therefore acts that wouldconstitute negligence and those that are excusable, the relevant defences, and,of course, the alternative sanctions to civil litigation for this type ofnegligence. The fused nature of the profession in Malaysia, perceived to bemore burdensome to its members, raises the question of the appropriate standardof the duty of skill and care.(For the purposes of this article an ‘advocate’ refers to theMalaysian (and Singaporean) lawyer, who as a member of a ‘true fused’ profession,engages in litigation or ‘contentious business’ as defined in s. 3 of the LegalProfession Act 1976.) {The writer is of the firm view that criminal casesshould be considered separately from civil cases because of the difference inthe law of procedure relating to the preparation of a case for presentation incourt and the public policy considerations peculiar to each type of case asseen in the approach taken by the House of Lords in Arthur J.S. Hall vSimons in which separate judgments were delivered for each type of case.And in Rees v Sinclair [1974] 1 NZLR 180, a civil case, in whichthe New Zealand Court of Appeal did not consider the position in criminalcases.
THE STATUTORY DERIVATIVE ACTION IN MALAYSIA: FILLING IN THE GAPS
Get PDFIn 2007, the Companies Act (Amendment Act) was passed. It included a new provision introducing statutory derivative action that allows action to be brought on behalf of the company by certain ‘complainants’. This article highlights certain gaps in the law or the potential misconception that could arise in understanding the new statutory derivative action. Decisions from the UK and other comparable common law jurisdictions that have codified the statutory derivative action discussing the scope of the statutory derivate action will be examined to shed some light on the newly introduced section 181A of Malaysian Companies Act 1965 with the intention of ascertaining whether the principles in some of these decisions could be introduced into Malaysian company law jurisprudence
DERAF TEKS UCAPTAMA YAB TIMBALAN PERDANA MENTERI MALAYSIA “MANAGING CORPORATE GOVERNANCE AMID THE NATIONAL ECONOMIC TRANSFORMATION”
Get PDFTerlebih dahulu, saya ingin merakamkan setinggi-tinggi penghargaan kepada YB Dato’ Sri Ismail Sabri bin Yaakob, Menteri Perdagangan Dalam Negeri, Koperasi dan Kepenggunaan dan SSM kerana sudi menjemput saya untuk menyampaikan ucaptama Persidangan Kebangsaan Suruhanjaya Syarikat Malaysia 2012 (Companies Commission of Malaysia National Conference 2012). Peranan SSM di dalam memacu ekonomi negara tidak dapat dinafikan. Hari ini, SSM bukan sahaja mempunyai mercu korporatnya sendiri di Kuala Lumpur Sentral, malahan telah berjaya memajukan system penyampaian perkhidmatan pelanggannya melalui pengenalan inisiatifinisiatif seperti Pemerbadanan Syarikat 1 Hari, e-Lodgement, MyCoID, e-Info, perkhidmatan kaunter bergerak, penubuhan Akademi Latihan SSM dan lain-lain. Saya amat berbangga dengan pencapaian-pencapaian tersebut. SSM merupakan institusi ekonomi penting di dalam rantaian ekonomi negara
AN EXPOSITORY STUDY OF THE ISLAMIC APPROACH IN THE JURISPRUDENCE OF RIGHT TO HEALTHFUL ENVIRONMENT
Get PDFThe Stockholm Conference of 1972 marked the emergence of a right-based approach to the protection of environment. Since then, it has become recognised that human rights can only be enjoyed in a pollution-free environment. The right to life may be violated by pollution of environment, which could endanger right to property as well, through interference with enjoyment of one’s property. This paper explores the various ways through which the right to a healthful environment can be ensured from the perspective of Islam. Although many articles have been written on the perspective of Islam to the protection of environment, very few exist on the rightbased approach to the protection. This paper examines the issue from the perspective of the five major principles of Sharîcah popularly referred to as Maqâsid Sharîcah