bluuebunny/crossref_metadata_2025 huggingface dataset:
PRINCIPLE OF AUTONOMY IN LETTER OF CREDIT: MALAYSIAN PRACTICE
Authors: Che Hashim Rosmawani , Othman Ahmad Azam , Abdul Aziz Akhtarzaite
Published: October 2018

The term letter of credit (LC) is not uncommon in international trade as it is the most frequently used method of payment by seller and buyer in their sales contract. LC serves its significant role by facilitating payment between buyer and seller from different countries, who are always prejudiced towards each other on the issue of payment, especially when the deal involves a huge amount of money. By using LC, the seller and buyer will be represented by their own bankers whose function, among others is to issue an LC for the buyer and pay on presentation of seller’s documents which strictly comply to LC requirements. It is well-known that LC is governed by the principle of autonomy or also referred to as the principle of independence1 which indicates LC, being a contract of payment is totally separate from the underlying sales contract. Banks are concerned with documents only and not with the goods. LC transaction can be governed by the Uniform Custom and Practice for Documentary Credit, known as the UCP through express incorporation which provides the rules relating to LC matters and is adopted in almost all LC transactions. This paper discusses the nature, background and significance of principle of autonomy in LC transaction. In elaborating the provisions on the principle of autonomy in the UCP 600, comparisons between relevant articles in the UCP 500 are highlighted. The discussion also focuses on relevant case law and on the application of the autonomy principle in conventional and Islamic LC. The paper concludes with the finding that Malaysian bankers fully subscribe to the principle of autonomy as outlined by the UCP 600.
THE RESTORATION OF PEACE AND STABILITY IN SOMALIA: THE CRITICAL ROLE OF THE AFRICAN UNION MISSON IN SOMALIA (AMISOM)
Authors: Halane Hassan Nur
Published: October 2018

There has been a civil war in Somalia ever since the central government collapsed in 1991 which means there has been more then twenty years of domestic violence. To stop the fight, the United Nations Missions and other forces authorised by the UN Security Council have been deployed to Somalia such as the United Nations Operations (UNOSOM) and United Task Force (UNITAF), but none of those missions and forces have bore fruit and the civil war in the country has not come to an end. Furthermore, United Nations thought it has failed militarily whatever caused in Somalia but politically it has been present because immediately after its withdrawal from the country United Nation Office in Somalia (UNPOS) was established in 1995 in neighboring country in Kenya. However, in 2006 the situation deteriorated further when there was a bloody conflict between Islamic Courts and the Transitional Federal Government (TFG) heavily supported by Ethiopia which later resulted in military defeat of the former and two years presence of Ethiopian contingent in Somalia. Consequently, the situation came under the spotlight of African Union which later established African Union Mission in Somalia (AMISOM) which is currently operating in Somalia with the approval of the UN Security Council under its Resolution 1744. The idea of creating AMISOM is to assist (TFG) as well as to promote peace and stability in Somalia.
THE STATUTORY DERIVATIVE ACTION IN MALAYSIA: FILLING IN THE GAPS
Authors: Mohd Sulaiman Aiman Nariman
Published: October 2018

In 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”
Authors: Yassin YAB Tan Sri Muhyiddin
Published: October 2018

Terlebih 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.
“THE COMMERCIAL LAW OF MALAYSIA” - REVISITED SECTION 5(2) OF THE CIVIL LAW ACT 1956; CONSTITUTIONALITY, THE EU AND ISLAMISATION
Authors: Abu Bakar Baharuddeen
Published: October 2018

Sec. 5(2) of the Civil Law Act 1956 with its predecessors, providing for the application of English commercial law of Malaysia, have existed unaltered for more than 100 years even with revision. There have been important political and economic developments during this period: Independence; the Malaysian Constitution; UK’s entry into the EU bringing with it the question of the constitutionality of applying English legislation and EU commercial legislation in independent Malaysia; and the attempt to found Malaysian civil law on Islamic values and ethics. Singapore has had to make drastic changes to its Civil Law Act, which it finally repealed and introduced a new legislation. The article considers the provision in light of these developments avoiding the well-known problems of interpretation.
THE IMPACT OF THE SHAFI‘I SCHOOL IN THE IMPLEMENTATION OF LAWS DURING THE REIGN OF SULTAN ZAINAL ABIDIN III IN TERENGGANU, MALAYSIA
Authors: Wan Hassan Wan Zulkifli b. , Abdullah Sidek , Muslim Nazri , Alias Jamsari
Published: October 2018

Sultan Zainal Abidin III was a Sultan who ruled over Terengganu in the early 20th century. He had established an Islamic government system that led to his reign being the most glorious in the recorded history of the Malay Peninsula. This article’s main objective is to identify the application of the Shafi‘i code in various aspects of law, especially in the Rules of Court, during his reign. The research found that the laws applied during his rule had many similarities with the Shafi‘i school of thought. The implementation of Rules of Court is seen to have been influenced by the ideas of major scholars of the Shafi‘i school such as al-Mawardi, al-Ansari, al-Sharbini and al-Ghazali. This shows that the implementation of laws in Terengganu had a strong basis and had organized procedures, indicative of a judicial system operating smoothly and fairly.
JUSTICIABILITY OF LEGISLATIVE PROCEEDINGS: A LEGAL ANALYSIS OF THE MALAYSIAN COURTS’ APPROACH
Authors: Kadouf Hunud Abia , Sambo Abdulfatai O.
Published: October 2018

The issue of whether courts can review legislative processes has always been at centre stage in constitutional discourse. Sometimes, some members of the legislature, being aggrieved on certain decisions or procedures the leadership of the House adopts in a situation, approach the courts for its intervention. Yet, Malaysian legal and constitutional frameworks seem to be that proceedings of the legislature are not justiciable. Based on this premise, the paper is intended to analyse the Malaysian courts’ approach towards actions brought to challenge certain proceedings of the legislature by the aggrieved members. To achieve this, the paper analyses issues relating to suspension of legislative members; removal of legislative members from committees or as principal members; disqualification of legislative members; injunction to stop the proceedings of the legislature; and confirmatory proceedings of the legislature. It uses provisions of Malaysian Constitution, courts’ decisions and opinions of experts to enrich this study. The paper finds that courts’ attitude has been largely that of the hands’ tied approach despite sufficient constitutional stings in members’ actions which should have justified the courts’ intervention.ABSTRAKIsu sama ada mahkamah boleh mengkaji semula proses perundangan sentiasa berada di pentas utama dalam wacana perlembagaan. Kadangkala, sesetengah ahli badan perundangan, yang terkilan dengan keputusan atau prosedur tertentu yang diambil oleh kepimpinanan Dewan dalam sesuatu keadaan, akan meminta agar mahkamah campur tangan. Namun, kerangka perundangan dan perlembagaan Malaysia menampakkan yang prosiding perundangan tidak boleh diadili. Atas dasar ini, penulisan ini adalah bertujuan menganalisa pendekatan mahkamah Malaysia terhadap tindakan yang diambil untuk mencabar prosiding tertentu badan perundangan oleh ahli yang terkilan. Bagi mencapai maksud tersebut, penulisan ini menganalisa isu-isu berkaitan dengan penggantungan ahli badan perundangan; penyingkiran ahli dewan perundangan daripada jawatankuasa atau sebagai ahli utama; pengisytiharan ketaklayakan ahli dewan perundangan; tindakan injunksi bagi menahan prosiding badan perundangan; dan prosiding pengesahan oleh badan perundangan. Ia menggunakan peruntukan Perlembagaan Malaysia, keputusan mahkamah dan pendapat pakar bagi memperkayakan hasil kajian ini. Penulisan ini mendapati bahawa sikap mahkamah, secara umumnya, adalah mengambil pendekatan ‘tangan terikat’ walaupun terdapat sengat perlembagaan yang mencukupi dalam tindakan ahli badan yang sepatutnya mewajarkan campurtangan mahkamah.
RECIPE FOR DISASTER? THE DEPLOYMENT OF PATENTS OVER ENVIRONMENTALLY SOUND TECHNOLOGIES
Authors: Abdul Ghani Azmi Ida Madieha , Ismail Suzi Fadhilah , Chun-Phuoc Jeong
Published: October 2018

The 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 ends
INDEPENDENT ADVICE CIRCULAR IN CORPORATE EXERCISES: REVISITING THE LAW ON FAIRNESS OPINION
Authors: Khan Mushera Ambaras , Hamdan Nur Nadiah , Ab Jabbar Nurhafiza
Published: October 2018

Independent advice circulars are required in broad range of corporate transactions. The advice circulars are extensively used in takeovers and mergers of companies. The board of directors of the target company is required to appoint an independent adviser to prepare the independent advice circular, in order to assist the shareholders of the target company in making their decision in relation to the takeover offer. Malaysia has taken an approach similar to its Australian counterpart by not treating the term fair and reasonable as a composite term. This current approach which treats the term fair and reasonable disjunctively has raised concern especially where the adviser concludes that the offer is "not fair" but "reasonable". This paper examines the current approach which the advisers must adopt in preparation of the advice circular. It explains the possible issues this new approach may encounter. References are made to the  Australian experience and literature in dealing with  preparation of independent advice circular. An empirical study must be conducted in Malaysia in order to determine whether the current approach has indeed improve the quality of the advice circular
THE LEGAL FRAMEWORK FOR CORPORATE LIABILITY FOR HOMICIDE: THE EXPERIENCE IN NIGERIA AND THE UNITED KINGDOM
Authors: Akanbi Khairat Oluwakemi
Published: October 2018

In recent times, corporate homicide has become an increasingly global phenomenon. These global incidences make it imperative to have a legal framework for holding corporations liable for deaths either of employees or members of the public that occur as a result of their activities. The challenge however is in applying the traditional criminal law elements of actus reas and mens rea to a corporation, since the criminal law had developed with the natural person in mind. The aim of this paper is to examine the legal framework for corporate liability for homicide sharing the experience in Nigeria and the UK. The paper discusses the application of criminal law elements of actus reas and mens rea to a corporate body in order to justify corporate liability for homicide. It also examines the Corporate Manslaughter and Corporate Homicide Act 2007 of the UK which is the first legislation on corporate homicide together with theposition in Nigeria. The paper finds that the legal framework in Nigeria is inadequate to secure corporate liability for homicide. The UK provisions can thus serve as a useful model in this regard.
THE ROLE OF ARBITRATION IN THE RESOLUTION OF INTERNATIONAL COMMERCIAL DISPUTES
Authors: Ishan Jan Mohammad Naqib
Published: October 2018

There are several methods of dispute resolution which are available to parties in international commercial contracts. However, arbitration has been enjoying overwhelming patronage and dominance over all other dispute resolution methods that are at the disposal of disputants. The article examines the role of arbitration in the resolution of international commercial disputes with a view to portraying its significance in the resolution of commercial disputes that have certain foreign elements. In doing so, the article considers the arbitration agreement, how it features in commercial contracts and the necessary elements for its recognition and enforceability. The article further examines the factors responsible for the significant role of arbitration and its prevalence in the resolution of international commercial disputes. In view of such task and in order to critically bring out the attractive role of arbitration, the article discusses advantageous features of arbitration such as the parties’ freedom, neutrality of the arbitrators, the applicable law and the seat of arbitration, flexibility of the process, confidentiality and transnational enforcement of awards. In view of these merits, it is recommended that parties to international commercial transaction should have arbitration agreement in their contracts in order to allow reference to arbitration in resolving their future commercial disputes.
CHILDREN FOSTER CARE LAW AND PRACTICE: WHAT MALAYSIA CAN LEARN FROM FOSTER CARE (IHTIDHAN) IN JORDAN
Authors: Mohd Azizah
Published: October 2018

Foster 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.
DISCRETIONARY DEATH FOR CONVICTED DRUG COURIERS IN SINGAPORE: REFLECTIONS ON THE HIGH COURT JURISPRUDENCE THUS FAR
Authors: Chen Siyuan
Published: October 2018

For decades, drug trafficking was a serious offence in Singapore potentially punishable by mandatory death. In 2012, Singapore’s Misuse of Drugs Act (MDA) was amended to give the courts sentencing discretion if the accused can first prove that he was merely a courier, and to better reflect the moral culpability accorded as between mules and kingpins in the hierarchy of drug syndicates. However, there are some complications in proving this. Not only must the accused show that he was merely a courier, he must also show that he had substantively assisted the authorities in disrupting drugtrafficking activities in Singapore. This raises an evidential quagmire as it is for the prosecution to certify that such assistance had indeed been rendered – the accused is therefore incentivised to admit to some form of guilt from the outset rather than to remain silent, since he may be precluded from adducing evidence of his role as a courier once the judge is satisfied that a drug-trafficking charge has been made out. Questions of self-incrimination and presumption of innocence are thus engaged. In addition, it is questionable if prosecutorial discretion should be further fortified by placing the certification power in the hands of the prosecutor. Finally, the MDA only states the preconditions of when there may be a discretionary death penalty, but does not state under what circumstances it should be preferred. Part 1 of this article establishes the background to Singapore’s historical approach towards drug-trafficking. Part 2 provides a synopsis of the first major High Court decision that addressed the amended MDA provision, while Part 3 analyses the decision as well as related case law. Concluding observations reside in Part 4.
Indigenous Land Disputes and Law Reform in India: Lessons for Malaysia
Authors: Wook Izawati
Published: October 2018

Disputes 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.
Towards An Effective Legal And Regulatory Framework for Public-Private Partnerships in Malaysia: Lessons From the South African Experience
Authors: Adekilekun Mubarak T , Gan C. C.
Published: October 2018

In 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 Scope of Taxation of Income from Illegal Activities in Selected Common Law Jurisdictions
Authors: Hingun Mohsin , Olaitan Nafiu S.
Published: October 2018

The 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.
From Earth to Heaven: States’ Criminal Jurisdiction in the Space Station
Authors: Mohd Hassan Rafika Shari'ah binti
Published: October 2018

State jurisdiction is a familiar aspect of international law. State jurisdiction could theoretically extend to outer space, and thus it may then be referred to as “Space Jurisdiction”. A state’s jurisdiction in outer space extends to its space objects and inhabitants. As crime on outer space is possible, therefore there is an uncertainty as to whether a state has the jurisdiction to try its nationals or foreign nationals who have committed an offense in outer space and in the space station. This paper aims to contribute to the existing body of knowledge and practice and, more importantly, guide the government agency, should they want to send astronauts to the space station in the future. It examines the legal regime regulating state jurisdiction in outer space in the context of the increasing commercialisation of outer space. This study draws significantly from international law statutes and the literature written by prominent jurists and scholars in space law. It finally offers some possible solutions to the gaps in the legal regime regulating state jurisdiction in outer space.
The Extent of Voluntariness in Plea Bargaining for Economic and Financial Crimes in Nigeria
Authors: Danjuma Ibrahim , Chuan Gan Ching
Published: October 2018

The concept of plea bargaining has globally been recognised and applied in criminal trials so as to enable the accused person to have lighter punishment or to be charge with a lesser offence in a criminal court, while the prosecutor on the other hand will secure conviction. Plea bargaining accommodates the consensual agreement between an accused person and the prosecutor in respect of the case against the accused which is subject to court’s approval or acceptance. In Nigeria, the Economic and Financial Crimes Commission (EFCC) is empowered by law to compound offences and to dispose financial and other related offences against the accused persons. Hence, EFCC uses its discretion to apply plea bargaining to some of the cases it prosecutes with the aim of securing conviction and to recover the illegally acquired property from the accused. In the case of Dieprieye Alamiesiegha, after an agreement was reached between him and the prosecutor (EFCC), instead of him pleading guilty as required by law in Nigeria, he explained the reasons why he pleaded guilty. This article examines the cases of plea bargaining in Nigeria and analyses whether or not the admission of guilt by the accused is voluntarily made or is motivated and influenced by some extraneous factors. This article finds that based on the cases analysed, the acceptance of plea bargaining in Nigeria by the accused persons as applied by the EFCC were not made freely and voluntarily as required by the law and best practices in other jurisdictions. This is because the accused persons were forced into it by some certain extraneous factors that were initiated and proffered by the EFCC against provision of the law.
Criminal Prosecution of Doctors in Indonesia: Issues and Problems
Authors: Susila Muh Endriyo
Published: October 2018

Criminal prosecution of doctors due to medical malpractice has created controversy in Indonesia. The purpose of the research is to find out the impact of criminal prosecution of doctors in Indonesia, particularly those due to medical malpractice cases. The data were collected through both library-based study and field study in the form of interviews. It is found that criminal prosecution of doctors in the context of medical malpractice has brought about negative consequences such as the exploitation of doctors by law enforcement officers and the practice of defensive medicine. It is found that criminal prosecution of doctors due to medical malpractice should be limited in order to promote justice in the medical malpractice issue. The article concludes with some elaboration on the necessary reforms required in regard to the law relating to medical malpractice in Indonesia.
Applied Ethics in the Ottoman Legal System in the Balkans: A Case Study of Bitola (Macedonia) with Reference to the Sijillāt al-Shar῾iyyah
Authors: Idriz Mesut
Published: October 2018

After the Ottoman withdrawal, numerous researchers of the Balkan peoples evaluated centuries of Ottoman domination in a negative and often hostile manner by interpreting it in a nationalistic and often myopic view. Based on archival materials left by the Ottomans, it has become incumbent upon the students to investigate and analyze as objectively as possible the history of Ottoman rule and its legal system in this region. Among all the documents contained in the archives those of the Sijillat al-Shar‘iyyah (Islamic Judicial Records) are considered to be the most important, where in them the reliable objective case-by-case sources are found, not only in legal aspects but also in socio-economic matters and religio-cultural institutions related to both Muslims and non-Muslims. In recent decades, the notion of “Applied Sharī‛ah and Ethics” has been used in a loose manner without a real and proper definition, mostly in matters related to the legality of contemporary business transactions. This article will attempt to discuss and present the correct meaning of applied Sharī‛ah and ethical approach by claiming that the most remarkable sources are the recorded documents preserved in the Sharī‛ah courts. In order to do so, the article focuses on two combined points: the Ottoman judicial records and a case study of the famous Balkan region of Ottoman Bitola (formerly known as Manastir) in Macedonia, where the former archival documents are found. Bitola is chosen as a model for how the Islamic laws were applied during the dominance of Ottoman Empire in the territory. It is well-known that the region of Bitola was a melting pot and a mosaic of various ethnic groups mainly Greeks, Turks, and Albanians, with different religious beliefs comprising of Muslims, Christians and Jews.
Entrusting Coast Guards with Maritime Law Enforcement Powers: Lessons for Malaysia
Authors: Hamid  Khin Maung Sein Abdul Ghafur , Bt Mustafa Maizatun , Wai Mon Su
Published: October 2018

In view of many and varied maritime threats and growing number of maritime crimes, it is necessary for States to have coast guards with maritime law enforcement powers to secure their maritime territories and protect maritime interests. Modern coast guards play a crucial role in sustaining maritime security and their operations have become more and more sophisticated. However, in the case of the Malaysian Maritime Enforcement Agency (MMEA), commonly known as the Malaysian Coast Guard, it is found that it is still struggling even after 12 years of its establishment to achieve its primary objective of becoming a single maritime law enforcement agency in Malaysia. The present study finds that there seems to be a veiled competition between the MMEA on one side and the other law enforcement bodies on the other.  An analysis of the practice of coast guards of the USA, India and Japan is made to find a solution to this crucial issue revolving around Malaysia’s maritime security.  The study finally concludes that the controversial section 7(3) of the MMEA Act should be amended to clearly entrusting the MMEA with, and excluding other relevant agencies from, maritime law enforcement powers in the Malaysian maritime zones. Maritime security, maritime law enforcement, coastguards, MMEA, marine police
The Relevance of Islamic Legal Maxims in Determining Contemporary Legal Issues
Authors: Shettima Muhammad , Biu Hamma Adam , Deribe Muhammad Al-Ameen
Published: October 2018

This work intends to review how far the maxims of Islamic law (al-Qawā'id al-Fiqhiyyah) applies to emerging issues upon which there are no exclusive legal authorities. The work started by defining the concept of the maxim and its relationship to other genres of fiqh. It went on to discuss its importance, sources and classifications. An important aspect related to maxims of Islamic law is whether or not it qualifies to be a legal authority. The work has been able to show that maxims are appropriate legal authorities as their strength is based on the legal provisions that support them. Using inductive, doctrinal and hermeneutical methodologies, the authors have attempted to review several works and fatwas that have resorted to certain maxims in discussing legal issues related to several contemporary matters. The work is more significant for identifying conditions that should be followed in applying the maxims to contemporary issues. The work concluded by recommending that researchers should stick to these conditions while investigating maxims and their applications to contemporary issues.
The Effects of Apostasy on the Entitlement to Property upon Death: The Malaysian Position
Authors: Mohd Salim Wan Noraini
Published: October 2018

Apostasy has always been a controversial issue in Malaysia. It inevitably leads to certain consequences and implications including the right of inheritance upon the death of a person. However, many do not have adequate knowledge on apostasy and its implications. This is especially seen among non-Muslims. Hence, misunderstanding and wrong perception towards Islam is further perpetuated. This article focuses on the implication of apostasy in the entitlement to property upon death both of a Muslim as well as an apostate. A discussion is also made on certain legal aspects of apostasy in Malaysia, which includes the problems of jurisdiction and administrative constraints in giving effect to the implication of apostasy in the entitlement to property upon death. The article analyses available literature on apostasy in Islam in the forms of textbooks, articles, seminar papers and decided cases. The main objective of the article is to address relevant contemporary issues on apostasy in Malaysia especially to its implications on entitlement to property upon death of either the apostate or his relative.
ADMINISTRATION OF A MUSLIM’S ESTATE UNDER SECTION 17 OF THE PUBLIC TRUST CORPORATION ACT 1995 WITH SPECIAL REFERENCE TO TRANSFER OF VEHICLES
Authors: Nasrul Muhammad Amrullah bin drs , Salim Wan Noraini Mohd
Published: October 2018

As one of the administrative bodies, Amanah Raya Berhad (ARB) possesses jurisdiction in administering the deceased’s movable estate through the issuance of letters of declaration and direction respectively. Applying for such document requires the applicant to attach the fara’id certificate as part of the application. The problem, however, is the superfluity of the fara’id certificate in estate cases involving the transfer of ownership of the deceased’s vehicle. This is due to the rule set by the Road Transport Department (RTD) which allows for only a single name to be registered as the new owner, and thus renders the fara’id certificate inoperable. Since the ARB still requires the fara’id certificate in cases involving the administration of vehicles, this requirement is burdensome to the beneficiaries as they have to incur additional costs, as well as spend time and effort to obtain the certificate. This article addresses the problem in relation to estate administration by ARB involving vehicles under Section 17 of the Public Trust Corporation Act 1995 and analyses the implication of such rule towards estate administration. It is based primarily on the analysis of written sources, namely, textbooks, statutes, by laws and journals. The findings from this article show that there is a need to improve the policy of the ARB and the RTD in providing a more efficient means to the public in the administration of the estate of a Muslims.
PROTECTING ASYLUM-SEEKERS PRIOR TO DETERMINATION OF REFUGEE STATUS: REINTERPRETING THE REFUGEE CONVENTION AND ASSESSING CONTEMPORARY STATE PRACTICE ON NON-REFOULEMENT
Authors: Hamid Abdul Ghafur , Abdul Majeed Phiri Shaban
Published: October 2018

The present decade is confronted with unprecedented refugee crises, dwarfing all similar refugee crises ever witnessed by mankind before. The plight of asylum-seekers, particularly prior to the determination of their refugee status by the host country, is of great concern to the UNHCR and the international community, as this is the time when they are most vulnerable. The sad situation of these asylum-seekers, their sufferings on small boats being packed like sardines on angry seas, and their pain in the hands of cruel human traffickers, beg the crucial question of whether they are protected in any way by international refugee law or left unprotected. With a view to answering this question, the present study applies the legal doctrinal method and attempts a holistic interpretation of articles 1A(2), 31(1) and 33 of the 1951 Refugee Convention. The study finds that the term ‘refugee’ in these articles is in effect referring to ‘asylum-seekers’ who fulfil the constituent elements of a refugee under the Convention and that these asylum-seekers cum refugees are protected by the Convention even before the regularisation of their refugee status. The key protection stems from the principle of non-refoulement. State practice nevertheless is not encouraging and potential States of refuge are very weak in honouring this principle, which is a corner stone of international refugee law. The study concludes with suggestions for resolving this core issue.
The Right of Private Defense against Non-Accountable Offenders and in Defense of the Chastity of Women under Islamic Law
Authors: Owaydhah Khalid , Mohamad Yunus Mohamad Ismail bin
Published: October 2018

The right of self-defense under Islamic law (Shariah) distinguishes between two concepts: private and public defense. In this article, legal and practical manifestations of the contemporary legal issue of private defense in the case of physical assaults made by non-accountable (mukallaf) offenders, such as minors and insane persons are focused. Aside from that, this article also analyses the use of private defense to protect the chastity of a woman. The four conditions to exercise the right of private defense are highlighted. In order to explore the effects of private defense, the significance of keeping the lawful measures and exceeding the right of self-defense are also discussed.
Guidelines and Legal Ecosystem for the Creation of Islamic Content in Malaysia: Towards Consumer Empowerment
Authors: ALI ADIBAH , Abdul Ghani Azmi Ida Madieha , Ismail Suzi Fadhilah , Daud Mahyuddin , Alavi Rokiah
Published: October 2018

The contents of creative industry must portray the cultural and religious values of the country. As a tool of nation building, creative industry plays a fundamental role in inculcating good values and the avoidance of social illnesses. The objective of this study is to examine the importance and growth of Islamic contents in Malaysian creative industry. By employing qualitative research methods, namely, content analysis and interviews, the study found that there is increase in the demand for Islamic contents. This study intends to highlight some of the concerns raised by both producers and consumers of creative content with the hope of empowering consumers in choosing content that is more suitable to their cultural and religious needs. For the Islamic content industry to flourish, having a supportive legal eco-system is imperative. This study explores the existing guidelines on Islamic content as a well as relevant legislation that governs content creation in Malaysia. The study concludes with some policy recommendations that would assist in harnessing the creation of Islamic content in Malaysia.
SPECIAL FEATURE No Judge is Parliament
Authors: Mohamad Tun Abdul Hamid
Published: October 2018

Speech delivered at the Symposium on “Constitutional Oath, Rule of Law, and Supreme Policing Role of the Judiciary”, International Islamic University of Malaysia, 30th March 2018.
Viability and Legality of Muslims Offering Products or Services Exclusively for Muslims
Authors: Abdullah Nuraisyah Chua , Rosnan Herwina , Yusof Norzayana
Published: October 2018

The debate on ‘Muslim-Only Laundrette’ in Johor, a state at southern Peninsular Malaysia has sparked outrageous responses from various levels of the society. Given the fact that there is scant literature to address this issue, by adopting the qualitative approach, this article aims to explore the issue, from a business perspective about where Muslim products and services stand in Malaysia and the legal aspects of offering goods and services exclusively from Muslims for Muslims. The right to segmentise customers based on religious grounds is critically analysed. This article discusses the governance of Muslim businesses, the issue of discrimination of goods and services in comparison with the position in the United Kingdom, United States of America and Australia. The possibility of mediation services in response to the national call for social harmony is also explored. This article concludes that detailed guidelines to differentiate discriminatory acts from adherence to religious duties should be given to service providers to avoid interreligious misunderstanding. The article further suggests that one of the possible marketing strategies to avoid discrimination claims could be to take a more moderate stand in marketing services such as ‘clean, friendly services' and the like apart from marketing to the Muslim audience through targeted marketing channels, such as Muslim media, local publications in Muslim majority countries, as well as targeted advertisement campaigns.
ANALISIS KELAYAKAN PEMBENTUKAN DAERAH OTONOM BARU PERSIAPAN GUNUNG SAHILAN DARUSSALAM KABUPATEN KAMPAR
Authors: Malau Riki Hanri , Alkadafi Muammar
Published: October 2018

The object of this research is the plan for the establishment of a new autonomous region of the preparation of Gunung Sahilan Darussalam from Kampar Regency.. The purpose of this research is to know the technical feasibility of expansion Gunung Sahilan Darussalam based on Government Regulation Number 78 Year 2007 About Procedure of Formation, Elimination and Merger of Region. Research methods; Using secondary data and analyzed quantitatively by determining the scores of each indicator into the eligibility requirements, consisting of 11 detailed factors into 35 indicators, then the data will be analyzed descriptively to explain the research results. The results of the study based on the assessment of indicators as mandated by Government Regulation Number 78 Year 2007. The formation of Gunung Sahilan Darussalam Regency can be said less fortunate  as a new autonomous region and included in the category rejected to be done expansion. This is because the total score for the candidate of Gunung Sahilan Darussalam Regency only reaches score 334, while the entry in the category of able and recommended if the score or the value reaches at least 340. However, the total for the remaining regency (Kampar after expansion) reaches 401. This means that number Categorized able, and meaningful of Regency of parent (Kampar after expansion) recommended. Thus, if the formation of Gunung Sahilan Darussalam Regency is realized to be non-lethal of the parent Regency (Kampar after expansion), which leaves 14 (fourteen) subdistricts
AUTOBIOGRAFÍA Y AUTORRETRATO
Authors: Porter Luis
Published: October 2018

En este texto se afirma que la autobiografía es un género que introduce al que se decide a aplicarlo, en el mundo de la creación literaria. Se hace una distinción entre el clásico texto académico, que es el ensayo, frente a la narrativa que terminará recurriendo al arte y a la poesía, trascendiendo la emoción de sentirse inteligente para lograr una emoción menos experimentada por el académico, que es el placer estético. Para ilustrarlo, la ponencia se divide en dos partes, la primera es un texto literario autobiográfico contado como una conversación desde el afecto y la libertad; la segunda son elementos teóricos que se desprenden de dicho texto y podrían explicarlo. Se sostiene que de todas las relaciones que establecemos con los demás, la más libre es la amistad que se da en una conversación libre. Esa es la conversación que sostenemos con nosotros mismos, y con nuestros seres queridos, entre ellos, aquellos maestros inolvidables que forman parte de nuestra vida. La autobiografía termina siendo un recurso que nos permite recuperar la dignidad que los gobiernos envilecidos de nuestros países, buscan quitarnos una y otra vez.
POR QUE ELE? REFLEXÕES SOBRE O PERCURSO E OS BASTIDORES DE UMA BIOGRAFIA HISTÓRICA
Authors: Silveira Éder da Silva
Published: October 2018

O artigo tem como objetivo apresentar alguns apontamentos e reflexões sobre os bastidores e os principais desafios encontrados pelo autor na pesquisa que resultou em uma biografia de Manoel Jover Teles. O texto está dividido em dois principais blocos. No primeiro, são discutidas as possíveis formas e as peculiaridades de uma biografia escrita na perspectiva de uma pesquisa histórica.  No segundo, reflete-se sobre algumas possibilidades de relação entre a biografia histórica e a micro-história italiana e aponta-se para algumas informações sobre os desafios colocados à pesquisa biográfica, em relação ao acesso de arquivos e fontes. Trata-se de um texto ensaístico e de cunho bibliográfico que, dentre outras questões, defende e argumenta que a biografia realizada por historiadores, seja no campo da História ou na área da história da educação, deve associar narração e explicação, sem deixar de colocar atenção às peculiaridades do corpus documental.
O SIMBOLISMO DO BATISMO CAPTURADO EM CARTAS PARA PROFESSORES QUE MARCARAM: LEITURAS ENTRECRUZADAS
Authors: Peres Lúcia Maria Vaz , Borges Alexandre da Silva , Lindner Luciana Martins Teixeira
Published: October 2018

Este trabalho é fruto do projeto de pesquisa denominado “Escrita de cartas aos professores que marcaram: memórias e imaginários ressonantes como fermentos de (auto)formação?” Visa problematizar as narrativas materializadas nas cartas, solicitadas para estudantes, em formação inicial em Pedagogia. Tendo o cunho epistolar como ferramenta empírica, optou-se pela análise simbólica à luz dos estudos teórico/metodológico do imaginário e dos estudos (auto)biográficos de formação. Ancorados em Josso (2002; 2010), Bachelard (1988; 1993), Durand (1988; 2008; 2012), Chevalier e Gheerbrant (2015) e Eliade (1977; 1992; 2013), a metodologia utilizada nessa investigação teve como base a pesquisa-formação e a mitocrítica, a partir dos referenciais construídos por Josso (2002), Delory-Momberguer (2008) e Durand (2012), respectivamente. Nosso foco foi buscar, nas recordações-referências, a amplificação da noção de professor-batismo, cuja imagem emergiu na simbólica das cartas analisadas.
A CRIANÇA E SUAS NARRATIVAS: A (AUTO)BIOGRAFIA NO ESPELHO
Authors: Maia-Vasconcelos Sandra
Published: October 2018

Os estudos sobre narrativas produzidas por crianças ainda são incipientes, no campo da Linguística, embora já encontrem uma efetiva difusão nas áreas da Sociologia, da Psicologia e da Pedagogia. Nossa pesquisa pretendeu contribuir com a ciência, trazendo para o campo da Linguística essa abordagem que pode apoiar a formação docente, nas áreas de línguas, em particular no ensino da língua materna, quando busca, pela valorização da criação verbal, entreter uma relação entre o universo lexical da criança e sua disposição à descoberta da narrativa, como gênero de intuito criador É importante que ressaltemos o que vêm a ser narrativas infantis: ora, nós precisaremos narrativas infantis como sendo narrativas contadas por crianças, histórias narradas por crianças; ora, histórias contadas para crianças por algum adulto presente; ora, histórias universais criadas para o público infantil em geral. Deste modo, diferenciaremos narrativas infantis como histórias universais contadas para crianças, e as histórias narradas pelas crianças, como sendo suas histórias, serão as narrativas das crianças, suas próprias vidas ou adaptações que elas fazem de suas próprias vidas, a partir de histórias populares, ficcionais ou não. Para esse intuito, traremos à tona os detalhes que as crianças elaboram em seus discursos narrados, incluindo o imperfeito lúdico, nas narrativas tradicionais, e retomadas intuitivamente pelas crianças.