International Islamic University Malaysia (IIUM) Law Journal
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ROYAL WAQF IN PERAK: A LEGAL AND HISTORICAL ANALYSIS
Full text linkThis paper analyses the legal and historical development of waqf made by Sultan Idris Murshidul' adzam Shah in Perak (1849 to 1916). There are many untraceable, lost, and perished waqfs in Malaysia. However, Sultan Idris’s waqf is an exception which still exists since its establishment in 1917. As such, this research intends to explore its sustainability factors. The research methodology used is the doctrinal and non-doctrinal research methods. The doctrinal method is used to analyse the enactments, government gazettes, audit reports, journal articles, and history books. Meanwhile, the non-doctrinal legal method, namely semi-structured interview, clarifies findings and information gathered from various documents. The research is essential as there is a lack of comprehensive research done on waqf made by the Sultans or the Head of State in Malaysia. The researcher finds that the waqf was an established under written legal instrument; the waqf by Sultan Idris was made based on the English law of trust, but the spirit and principles of waqf to permanently benefit the beneficiaries remain intact; the appointment of the Sultan's descendants as the trustees alongside a committee proved to be crucial for the sustainability of the waqf; and there was check and balance process through legal provision. This research provides a clearer picture of waqf practice before the establishment of Perak's State Islamic Religious Council and evidenced the Sultan's contribution towards developing and protecting Islam
REPERCUSSIONS OF MARITAL INFIDELITY IN MALAYSIA: A LEGAL RESPONSE
Full text linkIn today’s modern society, marital infidelity has become a dangerous threat to married life. Married couples are seen to be ‘comfortable’ in engaging in relationships with third parties. Such a trend has greatly contributed to the breakdown of marriages and subsequently led to the increase in the number of divorces and thus threatening the family institution. There are diverse causes for the prevalence of marital infidelity and this includes marriage boredom, unrealistic expectations, conflicts and misunderstandings between the husband and the wife. Although the seriousness of the affairs is widely recognized but marital infidelity is not considered as an offence in many jurisdictions including Malaysia. The objective of this article is to discuss the legal repercussions of marital infidelity in Malaysia and to consider whether existing legal solutions through the enforcement of law is an adequate mechanism to curb this social problem. The methodology adopted in this study is based on the content analysis of reports, case laws, leading textbooks and journal articles. The article is significant as it addresses crucial concerns over the adequacy of existing laws relating to the protection of the marriage and family institutions in Malaysia. The article is concluded with a series of recommendations and suggestions for improvements in existing law through appropriate legal mechanisms so as to curb the issue of marital infidelity in order to preserve the well-being of the family institution as a whole
SUPERIOR RESPONSIBILITY UNDER THE ROME STATUTE AND ITS APPLICABILITY TO CONSTITUTIONAL MONARCHY: AN APPRAISAL
Full text linkThe doctrine of superior responsibility has been embedded in Article 28 of the Rome Statute of the International Criminal Court, which enunciates the responsibility of both military commanders and civilian superiors. Although constitutional monarchs are civilians entrusted with the position of commanders in chief, there are States that opposed accession to the Rome Statute on the simple ground that their respective monarchs could be indicted and punished under the Rome Statute. The main objective of this paper, therefore, is to examine whether constitutional monarchs could be responsible under the doctrine of superior responsibility. The paper focuses on the analysis of the elements of superior responsibility by referring to the authoritative commentaries of Article 28 and constitutional practices of three selected constitutional monarchies: the United Kingdom, Japan, and Malaysia. The paper finds that constitutional monarchs could not be held responsible because they have to act on the advice of the government and do not possess the effective and operational control over the armed forces as required under the Rome statute
THE RIGHT OF RESTITUTION FOR CHILD VICTIMS OF SEXUAL VIOLENCE IN INDONESIA
Full text linkArticle 4 of the Convention on the Rights of the Child (CRC) mentions the obligations of state parties to implement the CRC. Furthermore, article 19 of the CRC requires State Parties to protect children from any form of violation including sexual violation through legislative, administrative, social and education measures. This article describes the results of research related to the implementation of CRC for child victims of sexual violence (CVSV) through court decisions. The analysis was conducted on seven Districts and three High Court decisions in 2018 in Medan and Deli Serdang Districts, North Sumatera Province in Indonesia concerning sexual violence which involve children as victims. The researcher conducted focus group discussions which involved two groups of respondents; (1) Law Enforcement Officers and (2) OPD (Organisasi Pemerintahan Daerah/Local Governments) and CSOs (Civil Society Organizations) which concerns CVSV issues. The finding shows that none of the court decisions mentioned about rights of the victims, as they focused only to punish the perpetrator(s). It is ironic since the right is regulated under several regulations in Indonesia concerning child protection. Therefore, the researcher recommends that police officers and Public Prosecutors should be more active in providing information concerning restitution for the victims. This will assist the victim(s) and his/her families to obtain justice not only by punishing the perpetrator but also by obtaining his/her right of restitution
COMBATING CHILD TRAFFICKING: IS THE CONVENTION ON THE RIGHTS OF THE CHILD (CRC) AND EXISTING LAWS IN MALAYSIA ADEQUATE?
Full text linkThis article is a study on human trafficking, which is the second most lucrative and profitable transnational organized crime in the world after drug trafficking. This crime is also known as a form of modern slavery, where humans are used as commodities to generate profit, and victims are prevented from accessing their fundamental rights. The victims of this crime are women, men, and children; however, the repercussions are far more serious when involving children. Human trafficking devastates the prospects of the future generation, where children are often forced into sexual exploitation, forced labour, illegal adoption and child marriage. In addition, such crime not only impacts the social, politic, economic and national security of a country but is also a grave violation of the child victims’ human rights. The main objective of the present article is to address the adequacy of Malaysian law in dealing with child trafficking and to see whether it is in line with international standards. The study suggests that many gaps exist in the current legislation dealing with human trafficking. These gaps need to be addressed especially those dealing with child trafficking. A qualitative approach was utilized in this study, where it involved library research to analyze the protection given by the Convention on the Rights of the Child and the extent of its implementation into domestic legislation, in order to combat child trafficking in Malaysia. This study found that Malaysia’s existing laws are inadequate to protect child victims of trafficking in Malaysia and need to meet the current standards and protection for victims, which include the identification of identity, appointment of a guardian, providing interim care protection, durable solution, and access to justice
FROM NUCLEAR NON-PROLIFERATION TREATY (NPT) TO THE TREATY ON PROHIBITION OF NUCLEAR WEAPONS (TPNW): SHIFTING PARADIGM AND ITS IMPLEMENTATION’S OBSTACLES
Full text linkSince its enforcement in 1970, it is evident that the negotiations process towards nuclear disarmament under the Nuclear Non-Proliferation Treaty (NPT) has encountered stagnation. This fact led to the inception of the Treaty on the Prohibition of nuclear weapons (TPNW) which possesses a distinct characteristic of NPT. TPNW utilizes a more digestible humanitarian approach, which emphasized the catastrophic impacts of possessing nuclear weapons, rather than the complex state-security approach. This study aims to primarily provide an in-depth understanding regarding the shifting regime from NPT to TPNW and nuclear disarmament in general. The author conducts the research by using the literature research method, and thereafter analyzes the relevance and employs the arguments contained in the literature critically. The research shows that the traditional paradigm in NPT is insufficient to achieve the goal of complete nuclear disarmament, as it only focuses on the interest and security of the states. Thus delegitimizing the existence of public participation, which is important to put pressure to mobilize the political will of the state. This article also shows the possible obstacles that TPNW might face during its upcoming implementation
THE ROHINGYA GENOCIDE CASE (THE GAMBIA V MYANMAR): BREACH OF OBLIGATIONS ERGA OMNES PARTES AND THE ISSUE OF STANDING
Full text linkOn 23rd January 2020, the International Court of Justice indicated provisional measures to protect the Rohingya from the alleged genocidal acts committed in Myanmar. Rejecting the argument made by Myanmar, the World Court decided that The Gambia has standing before the court although it was not directly injured by the alleged wrongful act. The court applied the concept of “obligations erga omnes partes” in the context of its ruling on standing. The court, however, did not elaborate more on the concept and did not touch on its details. Since this case had attracted so much international attention, the concept has become a trending topic for legal discourse. This article, therefore, is an attempt to resolve the issues of whether the concept of obligations erga omnes partes has been established as a rule of customary international law and whether such an obligation may arise from any type of multilateral treaty and any provision in a multilateral treaty. To this end, the article analyses the jurisprudence of the International Court of Justice (ICJ), the case law of international human rights courts and the work and the valuable commentary of the International Law Commission on Article 48 of the Articles on the Responsibility of States for Internationally wrongful Act 2001. The article concludes that the concept of obligations erga omnes partes has been established as a rule of customary international law, that it may arise from any type of multilateral treaty and that it is applicable only in relation to the provision of a treaty that is essential to the accomplishment of object and purpose of the treaty
DETERMINATION OF THE LEGAL STATUS FOR DISASTER EMERGENCY IN INDONESIA
Full text linkArticle 7 paragraph (2) of the Law Number 24 Year 2007 concerning Disaster Management (UUPB) stipulates that the establishment of a disaster emergency status must contain indicators that include the number of victims, property loss, the damage of the infrastructure and facilities, the extent to which an area is affected by the disaster and the socio-economic impacts that arise. Paragraph (3) of the article states that further provisions regarding the establishment of the status and the level of the disaster are regulated through a Presidential Regulation. However, the Presidential Regulation has not yet been issued while the Letter of Decision on the Disaster Emergency Status continues to be published, which causes legal uncertainty in its implementation. Hence this article investigates the legal mechanism in determining a disaster emergency status that guarantees legal certainty, its legal implications, and steps the (central) Government and the Regional Government should take in dealing with such legal implications. The research method employed in this study is the juridical normative research. Research on disaster legislation, especially in determining disaster emergency status, has not yet demonstrated legal certainty. This is due to the absence of legal mechanisms and positive legal formalities that are built from legal facts that lead to multiple interpretations and to legal disputes. The absence of the Presidential Regulation (Perpres) as a UUPB manifestation for determining the emergency status of a disaster as stipulated by autonomous provinces/districts (Decree) has contributed to the potential arbitrary use of state funds. Therefore, the Presidential regulation is urgently required
FREEDOM OF MISINFORMATION AND THE RELEVANCE OF CO-REGULATION IN MALAYSIA: A CROSS-JURISDICTIONAL ANALYSIS
Full text linkThe spread of fake news on COVID-19 is causing public unrest and suspicion among citizens which is a challenge for countries facing the pandemic. The misinformation or disinformation which stems from uncertainties, unrest, and anxiety because of movement control order procedures, financial and economic hardship caused wrong information to spread like fire. Often referred to as ‘info-demic’, it becomes a second source of virulent information that requires arresting just like the pandemic itself. Controlling fake news in a pandemic is a daunting problem that slaps Internet regulation on its face. On the Internet, lies spread faster than the truth, and correcting this misinformation is a tonne of work. In this paper, we examine Internet self- and co-regulatory approaches in selected jurisdictions to reduce the impact of fake news on governments, industry, and private actors. Through a qualitative method and doctrinal content analysis, this article examines the various approaches adopted in arresting fake news. In the first section, we analysed specific legislation enacted by parliaments that criminalised the acts of disseminating and publishing fake news. In the second section, we found efforts to impose civil and criminal liability on platform providers to monitor online content. In the final section, we analysed self- and co-regulatory efforts to introduce online fact-checking portals and awareness campaigns. This research argues that the Internet self-regulation system in Malaysia is not bringing the desired result i.e., maintaining peace and security of the nation. Considering the impact of dangerous misinformation on society, more so in a global emergency like the present COVID-19 pandemic, it is submitted that co-regulation is more suitable if the social, moral, and cultural fabric of the society is to be maintained
CROWDFUNDING AS AN ALTERNATIVE FINANCING FOR SMES AND START-UPS IN MALAYSIA: AN INTRODUCTORY NOTE FROM THE LEGAL PERSPECTIVE
Full text linkSmall and Medium Enterprises (SMEs) and start-ups have consistently contributed to a country’s tax revenue, technology advancement, and innovation, job creation as well as economic outputs. However, they are facing great challenges or setbacks in securing funding from external sources. To overcome the fundraising issues or financing lacuna, many entrepreneurs have resorted to crowdfunding as an alternative source of their equity or debt financing. Crowdfunding, being a significant aspect of the recent fintech innovation and digital disruption, has been put under the spotlight and received high expectations from all stakeholders to be an effective solution to SMEs and start-ups. This article would be focusing on crowdfunding with financial returns, namely, equity crowdfunding (ECF) and crowdlending/peer-to-peer lending (P2P). The research methodology employed by this article is primarily based on the literature review of various legislations, scholarly articles, research papers, government policies, books, and other publications concerning the ECF and P2P from different disciplines. At the end of this article, the author opined that crowdfunding could be a useful alternative financing method for SMEs and start-ups in Malaysia as it helps the capital formation and bridges the financing gaps for them. Countless benefits could also be offered to the society and economy at large with the proper crowdfunding regulations in place. Upon reviewing the Guidelines on Recognised Markets issued by the Securities Commission Malaysia (Guidelines), the author argues that the Guidelines is a carefully crafted and balanced regulation, albeit there is room for improvement