International Islamic University Malaysia (IIUM) Law Journal
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DUTY OF PATERNAL FAMILY MEMBERS IN THE MAINTENANCE OF CHILDREN ACCORDING TO SECTION 73(2) OF ISLAMIC FAMILY LAW (SELANGOR) ENACTMENT 2003
Full text linkSection 73 of Islamic Family Law (Selangor) Enactment 2003 provides that it is the duty of the paternal family to provide maintenance to the children in the event of the father’s death, missing in action or suffers from any disabilities. However, the efficiency of this provision depends on the understanding and application by the courts and the person who is said to be liable under ‘hukum syarak’. Currently there is not many studies conducted on the efficiency of this provision in solving cases where there is a failure to provide maintenance to children in the circumstances stated above. This study analyses the application of section 73 of Islamic Family Law (Selangor) Enactment 2003 with the aim of looking into the efficiency of this section in solving the issue children’s maintenance. The study adopts a qualitative method that involves doctrinal study, arm-researcher approach and semi-structured interviews. The provision, scope and jurisdiction of section 73 of Islamic Family Law (Selangor) Enactment 2003 is analysed in detail. The semi-structured interview delves into the current practice of the court in the Federal Territories where the views of selected respondents ranging from the judges in the Shariah courts in the Federal Territories, Shariah law practitioner, and academics. This study finds that the existing laws are somewhat insufficient in addressing issues of child maintenance and lack of awareness on the claimant (mother and children) on the responsibility of the extended family. The study proposed some recommendations for some reforms of the current law and practice
MALAYSIA’S LEGAL RESPONSE TO TACKLING THE CRIME OF ONLINE CHILD PORNOGRAPHY
Full text linkChild pornography is not a novel crime. For many years, it has been a prevalent concern but since the availability of the internet, it has become more universal and pervasive, as cyberspace provides offenders with greater accessibility to victimize children. In response to this, numerous countries around the world, including Malaysia have implemented and enhanced regulations and policies to accord better protection to children from the crime. The aim of this paper is to highlight Malaysia’s legal response and its efficacy in repressing the crime of online child pornography. Accordingly, the paper uses a doctrinal approach with content analysis to consider four issues. Firstly, the international and regional legal frameworks addressing online child pornography will be explored. Secondly, the paper provides an overview of the increasing threat of the crime in Malaysia. Subsequently, the legislative intervention taken by the nation to curb the crime is analysed, accompanied by an assessment on whether the existing law is consistent with international conventions. The overall finding reveals that the Malaysian legal mechanism has been substantially reformed to safeguard children in the country from online child pornography, especially after the enactment of the Sexual Offences Against Children Act 2017
FINTECH REGULATORY SANDBOXES IN AUSTRALIA AND MALAYSIA: A LEGAL ANALYSIS
Full text linkWith the era of digitalization, regulatory sandboxes have been the trend adopted by most financial regulators around the world in regulating financial technology (fintech). Regulatory sandboxes act as a pilot programme to regulate fintech services and products with several legal exemptions given to the service providers within established parameters. In 2016, the Australian Securities and Investments Commission and the Malaysian Central Bank followed the United Kingdom’s Financial Conduct Authority (FCA) to introduce regulatory sandboxes within their legal framework. To date, previous literature has only provided a minimal analytical overview of the Malaysian and Australian regulatory sandbox. Hence, this article aims to fill that gap in literature. The methodology used for this study is both doctrinal and comparative legal analysis. The main objective of this study is to analyse the key characteristics of fintech regulatory sandboxes by comparing the Australian and Malaysian regulatory structures of these sandboxes. Due to nascent nature of Malaysian and Australian fintech regulations, this contributes to the growing knowledge in the financial regulation literature. Moreover, the findings on the operation of the regulatory sandboxes in both jurisdictions is expected to bring practical value for further research
E-Hailing Services: Antitrust Implications of Uber and Grab`s Merger in Southeast Asia
Full text linkUber-Grab’s merger had attracted antitrust scrutiny by competition authorities in Southeast-Asia. The merger between the two had created a large giant company that provides various services through a platform such as ridesharing and food delivery services. According to the deal, Grab will take over Uber’s assets (ridesharing and food delivery service), and in return, Uber will take a 27.5 percent stake in Grab. Although Grab claimed that the merger would create a cost-efficient platform in Southeast Asia and put it in a better position to serve consumers, there was a genuine concern that the merger will reduce competition in the market and provide incentives to Grab to engage in anti-competitive behaviour such as increasing the price of its services. This article aims to analyse how different countries in Southeast Asia responded to the Uber-Grab’s merger and measures taken to address competitive concerns ex-ante and ex-post-merger. Unlike other competition jurisdictions in Southeast-Asia, the Malaysia Competition Act 2010 contains no merger control provision, which empowers the Malaysian competition authority to block any merger that has the effect of substantially lessening competition. The studies on how other countries evaluated the Uber-Grab merger could assist Malaysia’s competition authority to regulate the future behaviour of the big digital platform in the Malaysian market. This article was written based on research that relies on both primary and secondary sources. Primary sources include statutory provisions on competition, decision, proposed decision, interim measures, and others. while secondary sources include journal articles, news, internet resources, and others. The article also adopts a comparative approach in order to analyse the approaches and measures taken by the various merger control regimes in Southeast Asia in dealing with the Uber-Grab’s merger
Fake News in The Malaysian 14th General Election: Shall the Net Be Free Forever?
Full text linkMalaysia had its 14th General Election on 9th May 2018 that resulted in a change of government from the Barisan Nasional (BN) who ruled since 1957’s independence to the Pakatan Harapan (PH) coalition. Acknowledging the power that social media had in influencing voters, The Communications and Multimedia Act 1998 (CMA) was mobilised to hunt dissenters, where some cases resulted in successful prosecution. Despite the drastic move taken to enact the Anti-Fake News Act 2018 one month before the election, the previous government failed to convince the public that fake news was grave threats to society. Instead, the above initiative may have contributed to BN’s painful defeat against the inexperienced PH. After the election, PH faced similar issues of having to deal with a plethora of fake news online and the ‘gun’ had now turned towards them. The PH Ministers had difficult times correcting misstatements issued through social media which was flooded with sarcastic trolls, some of which may amount to illegal content. Through a qualitative method, this article assesses how social media influenced the landscape of 14th GE. Consequently, international and national legal frameworks have been developed to combat the dissemination of fake news online, as analysed in the second part of this paper. The third part further examines how popular social media platforms provide countermeasures in dealing with fake news and how far legal frameworks correspond to the practices of service providers. It is hypothesised that in time, the PH coalition should have turned towards censoring the internet as done by the previous BN government due to the emerging threat of online fake news all over the world. 
Legal Tech in Legal Service: Challenging the Traditional Legal Landscape in Malaysia
Full text linkDigital technologies are now extending its function to the legal profession. But the existence of these technologies otherwise known as legal tech or law tech is challenging the traditional legal profession. The nature of legal practice regulation in Malaysia and the United Kingdom (UK) permits only lawyers and authorised persons as legal service providers. As a result, the legal tech or law tech companies although able to facilitate the service in the legal profession are met with resistance and/or indifference. Should the traditional legal profession fear the invasion of this legal tech? This article aims to analyse the situation in Malaysia and the UK. It examines the impact of technology on legal service and legal profession in Malaysia and in the UK. The article also highlights the implication of this legal technology on the laws governing the legal profession in Malaysia. Through analyses of key Malaysian cases, the study finds that the Bar Council has the power to halt the operation of legal tech companies in providing any legal service in this country.As a result, the Bar has been criticised for being a hindrance to the development of legal tech in Malaysia. In contrast, the UK and the United States of America (US) have been very receptive to legal technology despite the exclusivity in the legal profession
Enhancing Regulation of Nutraceutical Products in Malaysia: Lessons from Japan
Full text linkThe phenomenal commercial success of many nutraceutical products, dietary and health supplements indicate increasing levels of consumer acceptance to the usage of health supplements in Malaysia. As much as these products are consumed for health purposes, lack of effective control by drug authority leaves much to be desired. Legal issues such as marketing approval, product liability, safety, advertising, trade description (nutrition labelling & health claims) would undoubtedly emerge as direct implications from widespread sales and consumption of such products. Consumers' health and safety are at risk where nutraceuticals can easily penetrate into the market without any need of undergoing clinical studies, as opposed to pharmaceuticals. This article was written based on research that has identified several causal factors to the above-mentioned issues. First, nutraceuticals are loosely classified as in between food and drugs. Due to the loose classification scheme, manufacturers tend to opt that their products be classified as food to escape strict clinical evaluations. This leads to the issue of misleading health claims made on its labels and advertisements. The article examines regulation of nutraceuticals in Malaysia and identifies significant issues therein. Comparative analysis with Japanese nutraceutical regulations was made to learn how Japanese classifies its nutraceuticals under specific categories known as ‘Food for Specified Health Uses (FOSHU)’. Products bearing the FOSHU logo went through strict clinical tests and are allowed to make health claims on their labels – and were proven effective and safe for consumption as claimed. The article made several recommendations for the establishment of a legal framework to regulate nutraceutical products in Malaysia
MACHINE-READABLE TRAVEL DOCUMENTS IN AVIATION SECURITY AND INFORMATION PRIVACY: AN ISLAMIC LAW PERSPECTIVE
Full text linkFor the purpose of preventing civil aviation offences and maintaining security of civil aviation, passengers are required to give biometric information which must be stored in the International Civil Aviation Organization’s (ICAO) approved Machine Readable Travel Documents (MTRDs) and that such information obtained should be adequately secured against skimming and eavesdropping. Since its inception, many countries including the Islamic countries have adopted the machine to process information of passengers coming in and going out of their states. Academic writers have written on the challenges of skimming and eavesdropping as they are related to information privacy versus aviation security in the conventional law but the Islamic law position has not been dealt with. The article therefore attempts to explore the Islamic law position on the use of Machine Readable Travel Documents (MRTDs) and the challenges being posed to aviation security. The paper is qualitative in nature and relies on primary and secondary sources of Islamic law to argue its position. The paper finds that Islamic law expressly preserves individual’s information privacy and that skimming and eavesdropping are allowed to promote public security and prevention of evil. Its further provides punishment for whoever transgresses against information privacy. It concludes that the adoption of MRTDs to obtain information about private affairs of passengers is in line with the principle of Islamic law
TRIPS AGREEMENT AND MALAYSIAN INTELLECTUAL PROPERTY LAWS: DATA EXCLUSIVITY v PATENT
Full text linkThis study analyses the provisions of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement with respect to the various intellectual property protection mechanisms. The main purpose of this study is to demonstrate that Malaysia is a TRIPS compliance country and have established intellectual property laws including the incorporation of data exclusivity laws. This study also illustrates that data exclusivity and patent are two different intellectual property protection mechanisms required under the TRIPS Agreement. Moreover, this study clarifies the misconception that data exclusivity and patents are somehow related; such that data exclusivity is an extension of patent rights and that it is often regarded as a TRIPS-plus provision. The study is conducted based on qualitative research, predicated on primary sources such as the TRIPS Agreement and the various laws with respect to intellectual property in Malaysia. It is further supported by secondary sources from journals and information provided on relevant authorities’ websites. The results of the study show that Malaysia is a TRIPS compliance country and that data exclusivity is an intellectual property protection mechanism that is established pursuant to Article 39.3 of the TRIPS Agreement. Hence, this study concludes that member countries of the TRIPS Agreement that have established data exclusivity protection mechanism to protect undisclosed data submitted to their respective authorities for the purpose of marketing approval of pharmaceutical or agricultural chemical products, including Malaysia, are indeed in compliance with the obligation set under Article 39.3 of the TRIPS Agreement