International Islamic University Malaysia (IIUM) Law Journal
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EXTRATERRITORIAL APPLICATION OF THE EU GENERAL DATA PROTECTION REGULATION: AN INTERNATIONAL LAW PERSPECTIVE
Full text linkThe General Data Protection Regulation (the GDPR) of the European Union (EU) emerges as a hot-button issue in contemporary global politics, policies, and business. Based on an omnibus legal substance, extensive extraterritorial scope and influential market powers, it appears as a standard for global data protection regulations as can be witnessed by the growing tendency of adopting, or adjusting relevant national laws following the instrument across the globe. Under Article 3, of the GDPR applies against any data controller or processor within and outside the EU, who process the personal data of EU residents. Therefore, the long arm of the GDPR is extended to cover the whole world, including Malaysia. This gives rise to tension worldwide, as non-compliance thereof leads to severe fines of up to €20 million or 4% of annual turnover. This is not a hypothetical possibility, rather a reality, as a huge amount of fines are already imposed on many foreign companies, such as Google, Facebook, Uber, and Equifax to name a few. Such a scenario, due to the existence of state sovereignty principles under international law, has made the researchers around the world curious about some questions, why does the EU adopt an instrument having the extraterritorial application; whether the extraterritorial scope is legitimate under normative international law; how the provisions of this instrument can be enforced, and how these are justified. This article attempts to search for answers to those questions by analyzing the relevant rules and norms of international law and the techniques of the EU employed. The article concludes with the findings that the extraterritorial scope of the GDPR is justified under international law in a changed global context. The findings of this article will enlighten the relevant stakeholders, including Malaysian policymakers and business entities, to realise the theoretical aspects of inclusion of the extraterritorial feature of the GDPR, and this understanding may facilitate them to map their future strategies
THE LEGAL PROTECTION OF MARINE ECOSYSTEM FROM CIGARETTE BUTTS POLLUTION IN INDONESIA
Full text linkIndonesia is recognized as a country with high potential in maritime resources. However, Indonesia is also known as the second-largest contributor to plastic waste in the ocean. It is estimated that Indonesia contributes around 200,000 tonnes of plastic disposals. The highest pollutant of the plastic product was found to be cigarette butts. The trillions of cigarette butts generate chemical contamination the ocean waters. Chemicals that leach from the cigarette butts are extremely toxic to the aquatic life in the ocean. The marine pollution caused by this contamination was never seriously noticed, even though the huge number of cigarette butts were found in the sea. A grave concern should be shown on the impacts of the cigarette butts to the ocean. The objective of this article is to elaborate on Indonesian law dealing with the issue the cigarette butt pollution contaminating the oceans of Indonesia.This article is the result of normative research which analyzes exiting statutes and cases that aims at protecting the marine ecosystem from the cigarette filter disposal. This research attempts to analyze the existing laws and regulations in Indonesia on the protection of the marine ecosystem from toxic and hazardous wastes, especially from cigarette butts waste disposal. The results of this study show that to date there is no specific regulation dealing with tobacco waste product disposals. Accordingly, the government is suggested to enact a set of specific and effective regulations pertaining to tobacco waste products as done by some developed countries or states such as Singapore and Australia, so that marine pollution caused by cigarette butts could be prevented.
RIGHTS OF PRISONERS UNDER THE INTERNATIONAL HUMANITARIAN LAW: A CASE STUDY OF THE PALESTINIAN PRISONERS IN ISRAELI PRISON
Full text linkThe Israeli occupation of Palestine has triggered several forms of Palestinian resistance, resulting in the detainment of Palestinians through Israel systematic policies which destroy the will of the Palestinians. This has made the issue of prisoners one of the most important concerns that the Palestinians continue to endure in their daily lives. Therefore, this study aims to clarify the role of international humanitarian law (IHL) in protecting prisoners. It also discusses the rights granted to prisoners by international treaties and conventions and Israel’s application of the rules of IHL to Palestinian prisoners. This research is based on doctrinal and qualitative methods using the sources of IHL about prisoners’ rights. This study also discusses the violations committed by the Israeli occupation against Palestinian prisoners, which are the inhuman treatment they are subjected to, and the passage of a group of laws that violate the rights of Palestinian prisoners. The study concludes that Israel denies Palestinians the rights as prisoners of war, describing them as illegal combatants, and claims that the convention does not apply to the occupied Palestinian territories although IHL under the Geneva Convention includes members of the resistance and organised armed forces. As a result, prisoners from the Palestinian resistance can be considered prisoners of war
MARRIAGE WITHOUT WALI’S CONSENT: A PARADIGM SHIFT IN THE FAMILY STRUCTURE OF PAKISTAN
Full text linkIn Islamic law on nikah is referred to as a civil contract. Thus, to fulfil a valid contract all the requisites of a valid marriage (arkan an-nikah) must be fulfilled. The majority of Muslim jurists opined that the consent of the guardian (wali) is one of the pillars determining the validity of marriage. Nevertheless, the Hanafi sect views that it as a mere condition for a marriage. In Pakistan, a precedent has been set in the Supreme Court’s case of Saima Waheed, where it was decided that an adult Muslim woman can marry without the consent of her guardian. The decision ignited a debate on whether the consent of a guardian is a requisite pillar of a marriage contract or merely a condition to it. In order to comprehend the issue of wali’s consent, it is essential to discuss the purpose of a marriage itself. This article discusses the importance of the wali’s consent under Islamic law, followed by an elaboration on the legal status of a marriage without consent of the guardian under the Pakistani law. Besides arm-chair research, interviews were conducted with female respondents who had conducted their marriage without their wali’s consent. The findings from these interviews indicate that marriage without wali’s consent is shattering the family structure and causing isolation of the partners both from the family and the society. Irrefutably, approval of the guardians in marriage is essential in sustaining the family system
WATANIC JURISPRUDENCE: ARTICULATING THE LEGITIMATE ELEMENTS OF THE BASIC STRUCTURE OF THE FEDERAL CONSTITUTION
Full text linkThe doctrine of the basic structure of a constitution would be undisputable if those elements thereunder are clear and representing the facts of our local history, nationhood, and the principle of the rule of law. Former Chief Justice Tun Abdul Hamid Mohamad argued that the doctrine of the basic structure of a constitution introduced by the Indian Supreme Court contradicts Article 159 of the Federal Constitution and beyond the competent jurisdiction of the local courts. Hence, this article puts forward the conceptual framework of the basic structure adopted by the Federal Court in the case of Indira Gandhi to articulate those elements summed therein viewed from the watanic jurisprudence. The watanic jurisprudence analyses legal documents and sources of sovereignty based upon two philosophical worldviews; continuum and dichotomous frameworks relying upon the local legal history context and the present legal provisions of a country. Depending on a broad and purposive manner in proper linguistic, philosophic, and historical contexts of the Malaysian legal historical documents, the legitimate elements of the basic structure are the principle of sovereignty as embedded in the oath of office of the Yang di-Pertuan Agong together with the matters aggregated in Article 38(4), Article 159(5) and Article 161E. The oath of the Yang di-Pertuan Agong thus legitimizes Syariah compliance as the rule of law. The Federal Constitution of Malaysia also expressly protects its basic structure with strict conditional amendments. In conclusion, the basic structure of our Federal Constitution must be viewed from our local circumstances in compliance with the principle of constitutional supremacy and the rule of law
CONFIDENTIALITY CLAUSES IN INVESTOR-STATE CONTRACTS FOR THE PROTECTION OF TRADE SECRETS AFTER PROMULGATION OF THE INDONESIAN ACT ON PUBLIC INFORMATION DISCLOSURE
Full text linkA confidentiality clause is a clause in investor-state contracts which is in the operative part of the contract to guarantee adequate protection of the trade secrets of the contracting parties. This article argues that there is a need to change the current practice where investor-state contracts in Indonesia utilizes broadly defined confidentiality clauses as a means to protect trade secrets in international business transactions. This is because a broadly defined confidentiality clause is contradictory to the provisions of the Act on Public Information Disclosure (APID). APID is aimed mainly at providing public information disclosure. The public information includes public contracts, such as investor-state contracts. Therefore, a new model of the confidentiality clause is needed for the protection of trade secrets as intended by the Act on Trade Secrets (ATS) and contract law as well as public information disclosure as intended by APID. This article employs doctrinal legal research. The research utilized, primary, secondary, and tertiary legal authorities. The primary legal material intensively used in this article consists of mandatory-primary legal authorities, in the form of statutes and contracts. The contracts used are the investor-state contracts of Aceh Province, Indonesia. The finding shows that a new model of the confidentiality clause can be created by accommodating both the interest of the state for providing public information disclosure based on APID and the interest of investors for the protection of trade secrets based on ATS and contract law. Investor-state contracts are a specific type of contract which has specific characteristics that apply to both private law and public law. They are different from purely international commercial contracts which only apply private law. Investor-state contract drafters need to be aware of this difference and provide a more balanced confidentiality clause in the contracts
SUSTAINABLE E-WASTE MANAGEMENT IN MALAYSIA: LESSONS FROM SELECTED COUNTRIES
Full text linkThe seriousness of electrical and electronic equipment waste (E-waste/WEEE) problem is currently haunting both developed and developing nations around the world. WEEE in layman’s term can be defined as discarded components of electrical and electronic equipment that have no reuse value. Improper disposal of WEEE can bring about catastrophic effects to mankind and the environment. The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 1992 categorises WEEE as hazardous waste due to the presence of toxic materials. Currently, the production of WEEE is expanding at a significant rate and is expected to touch 52.2 million Mt tonnes globally by 2021. The nations around the world have taken initiatives such as introducing new laws, regulations and policies. Malaysia is also similarly affected by the increasing volume of WEEE and it has been reported that its WEEE would reach an aggregate of 762.507 million units by 2020. In response, the Malaysian government has drafted a new regulation, the Environmental Quality (Household Scheduled Waste) Regulation, which is currently under review by the Attorney General’s Chambers. Using the library-based research methodology, this legal research aims to provide a comprehensive overview of WEEE management from a global as well as the Malaysian perspective. A brief discussion on the classification of e-waste and analysis of key initiatives taken worldwide is provided and examined. The article concludes with a recommendation for the necessary actions that can be adopted to enhance best WEEE management practices in Malaysia, to ensure the threat imposed by WEEE on mankind and the environment is curtailed
RETIREMENT BENEFIT IN MALAYSIA: UNDERSTANDING THE LEGAL FRAMEWORK AND ITS CHALLENGES TO THE MIGRANT WORKERS
Full text linkThe retirement benefits scheme is one of the social security protections accorded to employees around the world. In Malaysia, the retirement benefits scheme is in the form of the contribution made by both employer and employee at a specified rate based on the employee’s monthly wages and such contribution will be credited into the employee’s fund. An employee is allowed to withdraw money from the fund when he or she reaches retirement age. The doctrinal study found that the retirement benefits scheme in Malaysia differs greatly between the local employees and migrant workers. Although migrant workers are allowed to contribute to the retirement benefits scheme known as Employees Provident Fund, their contribution is voluntary, and not done compulsorily. The contribution of the employer is capped at only RM5 per month, which is very low. It is exacerbated by the fact that the contribution in the fund is not transferable as the Employees Provident Fund Act does not provide any provision to transfer the retirement benefit to another scheme in another country. It is hoped that these challenges faced by migrant workers will be given due consideration by the government to allow the migrant workers to have adequate social security protection by reforming the current retirement benefit statute or introducing a new retirement benefit statute that only protects the migrant workers
UPHOLDING ENVIRONMENTAL HUMAN RIGHTS THROUGH JUDICIAL INTERPRETATION OF PEACEFUL ENJOYMENT OF PROPERTY
Full text linkJust as the Universal Declaration of Human Rights of 1948 marked the beginning of contemporary international human rights law and the subsequent adoption of regional human rights instruments, so the Stockholm Declaration of 1972 marked the genesis of a rights-based approach to the protection of environment. Since then, human rights have become a legal weapon exerted in the strive to protect the environment and enhance access to environmental justice. Hence, it is not a mere theoretical discourse that environmental degradation affects the enjoyment of basic human rights. It has now become recognized that human rights such as the right to life and many others can only be enjoyed in a polluted free environment. It is against this background that this paper examines how the right to peaceful enjoyment of property as guaranteed in international and regional instruments on human rights has been construed to foster environmental protection. To achieve this, interpretations through decided cases are examined for a proper evaluation of judicial attitude and willingness in this respect
A NEW ROLE OF CAUSATION THEORY TOWARDS ACHIEVING ECONOMIC CONTRACTUAL EQUILIBRIUM: ANNULLING THE ARBITRARY CONTRACTUAL CONDITIONS
Full text linkThe phrase “who says contractual, says justice” (qui dit contractuel dit juste) does not fully express the truth of present reality, where the phrase itself falls into doubt, since a contract does not always result in fair obligations. In this regard, the French judiciary realized that the absence of justice in a contract might arise as a result of the contractual freedom afforded to the contracting parties. Thus, the idea of Commutative Justice in the contract was developed, such as, the Chronopost’s decision which is considered one of its most important applications. However, the equivalence of rights and obligations in the Palestinian Draft Civil Code only exists in a virtual form, without any content that actually contributes to the achievement of the equivalence between rights and obligations in contracts. This article seeks to prove that the provisions of the causation theory in the Palestinian Draft Civil Code can be used as an effective means for achieving contractual justice between the contracting parties, in order to maintain economic contractual equilibrium of the contract. To do so, the function of the causation theory should be analysed in a comparative analytical approach with the Chronopost’s decision to illustrate the Palestinian legislative deficiencies. It will also show the need for adopting the French judicial approach, which will establish a general rule that any arbitrary clause that contravenes the essential obligation of the contract is considered to be unwritten, regardless of the nature or the subject matter of the contract