bluuebunny/crossref_metadata_2025 huggingface dataset:
JUVENILE DELINQUENCY IN MALAYSIA: LEGAL FRAMEWORK AND PROSPECTS FOR REFORMS
Authors: Hussin Nasimah
Published: October 2018

It is undeniable that offences committed by young offenders in Malaysia are increasing. Progress in technology and development in IT has exposed our youngsters to various violent related programmes. The type of offences committed differs from the early days. Thus, it is timely to examine the existing legal framework and to suggest reforms to the system so that the aspects relating to punishment of young offenders can be reviewed. This is necessary to ensure that the punishment is deterrent and rehabilitative whilst at the same time, it would safeguard the interests and welfare of young offenders. This paper examines the application of the law pertaining to the criminal liability of young offenders and their positions in both the civil and sharīʿah systems.
THE ‘RED-INK GRANTS’: THE MALAYS AND THE LAND
Authors: Mobarak Ali Bashiran Begum , Mohamad Nor Asiah
Published: October 2018

British policy was to preserve and protect the Malay race on the assumption that they, despite being the majority, are historically a disadvantaged race. In addition, they were in need of economic protection against the more aggressive immigrants. Therefore, with the declaration of independence in 1957, a new written constitution was formulated for the Federation of Malaya with the inclusion of Malay special privileges. These privileges include the reservation of land, operation of quotas for licenses and permits, scholarships, etc. This article seek to examine the foundation of Malay reservation land policies in Peninsular Malaysia in the last 50 years and the present policy of the government. It also discusses the challenges faced by the Malaysian government in escalating the development of the Malay Reservation institution and to explain the strategies and policies adopted to meet these challenges.
THE THEORY AND PRACTICE OF ṢULḤ (MEDIATION) IN THE MALAYSIAN SHARIAH COURTS
Authors: Muhammad Ramizah Wan
Published: October 2018

This paper attempts to discuss the position of Ṣulḥ as a mediation tool to resolve cases brought up in the Shariah Court. The first part of the paper is to explain the importance of Ṣulḥ in the institution of justice in Islamic law. Some relevant authorities from the sources of Islamic law will be highlighted including the practice of the companions. The second part of the paper will focus on the status of Ṣulḥ in the Shariah Court in Malaysia in terms of history, ethics of the Ṣulḥ officer and the procedure of how Ṣulḥ takes place in the Shariah Court. The last part of the paper will focus on the Ṣulḥ officers including female officers and compare their status with male Ṣulḥ officers, nature of cases (e.g divorce, taʿlīq, ḥaḍānah) handled by the Ṣulḥ officers and their success rate. The paper will conclude by a discussion of the possibility of the Ṣulḥ officers occupying the position of a judge in the Shariah Court. The last point to be discussed is the balance in terms of number of cases resolved between them.
REGULATING THE ROLE OF EXTENDED FAMILIES IN PROVIDING FINANCIAL SUPPORT UNDER MALAYSIAN LAW
Authors: Zain Najibah Mohd
Published: October 2018

This paper examines the adequacy of legal provisions governing the role of extended families in providing financial support under Malaysian law. This is to promote the importance of such function despite the breaking up of extended family relationships due to modernisation and urbanization. The study focuses on the Malay Muslim family where personal law is based on Sharīʿah and the role of extended family is an important component of the system. Besides, other forms of financial provisions are analysed to reflect the extent of familial relationship in response to the current needs.
EARLY JURISTIC APPROACHES TO THE APPLICATION OF ḤIYAL (LEGAL DEVICES) IN ISLAMIC LAW
Authors: Sadique Muhammad Abdurrahman
Published: October 2018

A precise demarcation separating ḥiyal from normal application of law has remained challenging. The majority of juristic trends are seen to categorise ḥiyal into permissible and impermissible types. Out of four categories of ḥiyal, juristic difference is found only with regard to one, where a permissible avenue is employed for attaining an unlawful end. This highlights that there is a large area of ḥiyal where there is near unanimity on acceptability. Despite the apparent laxity perceived of Ḥanafī jurists with regard to ḥiyal, they have limited the employment of ḥiyal to justifiable purposes only. The debate on ḥiyal could essentially be reduced to the juristic difference on the relevance and significance of intent in contracts, as upheld by Ibn Ḥajar al-ʿAsqalānī.
PROSECUTION OF RAPE IN ISLAMIC LAW: A REVIEW OF PAKISTAN HUDOOD ORDINANCE 1979
Authors: Noor Azman bin Mohd
Published: October 2018

There has been some confusion over prosecuting rape in modern Islamic legal studies. A question has arisen: should the Islamic court treat the case of rape, in regard of convicting and proving rape, by imposing the same jurisprudential provisions, requirements and legal proceedings as in the case of zinÉ on the ground that rape involves elements of illegal intercourse similar to zinÉ? As such, should the rape victim who complains about rape be charged with qadhf if there is insufficient evidence? This article examines the notions of the prosecution and the required evidence for both rapist and rape victim in Islamic criminal law with special analytical analysis on the Pakistan Enforcement of Hudood Ordinance 1979.
COLLECTIVE DOMINANCE IN COMPETITION LAW AND POLICY OF THE EUROPEAN UNION: AN ASSESSMENT
Authors: Rahim Mia Mahmudur
Published: October 2018

The European Commission, supported by the European Courts, developed the framework for competition law and policy in Europe. One of the main purposes of this policy is to build a conceptual and legal foundation to promote market opening and to strengthen community institutions. In this policy framework, ‘collective dominance’ of firms in the European market is the utmost important issue. To deal with this issue, the competition law of the European Union is now relying more on the extensive network of national-level authorities and applying broadly consistent substantive rules. The notion of ‘collective dominance’ in European competition policy is in transition towards policy based on market-center economic considerations as regulations and guidelines increasingly follow an analytic format based on economic perspectives.
IMPLEMENTATION OF MUÑÓMALAH HIRE-PURCHASE BILL IN MALAYSIA: CHASING A MIRAGE?
Authors: Abdullah N. Irwani
Published: October 2018

Islamic hire-purchase (Al-Ijūrah Thumma Al-Baiʿ or AITAB) is one of the innovative products of Islamic banks in Malaysia. Since its first inception more than 10 years ago, AITAB has been governed by the Hire- Purchase Act 1967 (hereinafter referred to as ‘the HPA’). Notwithstanding the surge in popularity of AITAB amongst the general public, the product has received much criticism due to its inherent limitations especially with regard to its regulatory framework. Critics of AITAB posit the inherent limitation of the HPA to effectively and efficiently govern AITAB transactions particularly when dealing with Sharîʿah issues. Consequently, Muʿāmalah Hire-Purchase Bill had been proposed to the Malaysian government to overcome certain limitations of the HPA. The issue was, whether AITAB would be best governed by having an independent regulation (known as Muʿāmalah Bill), or by simply incorporating Sharīʿah principles within the existing regulation (HPA). Unfortunately in recent years, the Attorney General has rejected the idea of an independent Muʿāmalah Bill due to certain factors. To better comprehend the rationale for this rejection, this paper discusses the overall regulatory framework of AITAB operations in Malaysia based on 46 expert interviews. In particular, the paper provides important insights into the advantages and disadvantages of implementing either a distinct Muʿāmalah Bill or harmonising the existing HPA with Sharīʿah principles of hire-purchase.
PROBLEM-BASED LEARNING AT AHMAD IBRAHIM KULLIYYAH OF LAWS
Authors: Ali Bashiran Begum Mobarak , Mohamad Nor Asiah
Published: October 2018

Problem-based learning (PBL) serves as an alternative tool in the teaching of law at the International Islamic University Malaysia (IIUM). IIUM emphasises on producing well-rounded graduates who are professionally qualified and who practice Islamic values. Problem-based learning has proven to be a very effective complementary tool in achieving this educational aim. The main elements of problem-based earning (PBL) are the study of real case problems, team work, time management, reflective journal writing and peer evaluation. All of these elements form essential parts of the Islamic education system. This paper discusses the Islamic values existing in problem-based learning and evaluates to what extent Ahmad Ibrahim Kulliyyah of Laws (AIKOL) in general, and the course Equity and Trust in particular, has successfully harmonized and integrated problem-based learning with Islamic values.
ACCEPTANCE (QABÛL) AND TAKING POSSESSION (QABḌ) OF HIBAH UNDER ISLAMIC LAW AND THE DECISION OF THE SYARIAH COURTS IN MALAYSIA
Authors: Ibrahim Badruddin Hj
Published: October 2018

One of the important components in the creation of contract in Islamic law, apart from the contracting parties (ʿūqidūn) and subject matter of contract (maḥal al-ʿaqd), is formation (ṣîghah). It consists of two essential elements i.e. offer (îjūb) and acceptance (qabûl). The absence of formation will render the contract invalid and imperfect. Nevertheless, in the case of hibah as it is a kind of contract of charity (tabarruʿ), the issue arises as to whether the element of acceptance is required in order to constitute a valid hibah. Added to this is the issue of whether hibah is completed and ownership of property transferred to the recipient as is the case with other types of contract when all of the above three components of contract and their requirements are fulfilled. This study examines issues relating to these two important matters of hibah, since disputes among parties in the Syariah Courts of Malaysia mostly involve these. The examination focuses on the positions of Muslim jurists of the four well-known schools of law, i.e. Shūfiʿî, Ḥanafî, Mūlikî and Ḥanbalî, on the issues. In addition, as the law of hibah for Muslims in Malaysia is mostly uncodified, the study also examines the law that has been applied by various Syariah Courts in Malaysia regarding these issues, especially whether their decisions are solely based on the law according to the school of Shūfiʿî. This is in order to find out an acceptable set of rules that could govern the creation of a valid and perfect hibah.
THE NECESSITY FOR A SEXUAL HARASSMENT ACT IN MALAYSIA
Authors: Kaur Sarvinder
Published: October 2018

Sexual harassment is a major problem at the workplace. The options of recourse available to a person subjected to sexual harassment are: complaining to the employer, complain to the Labour Department, pursuing criminal proceedings under the Penal Code and commencing action under the law of tort. All of these options are not conducive. In 1999 the Ministry of Human Resources launched the Code of Practice on the Prevention and Eradication of Sexual Harassment in the workplace. The aim is to provide guidelines to employers on the establishment of in-house mechanisms at the company level to prevent and eradicate sexual harassment in the workplace. While the Code has been the first concrete step towards recognising the seriousness of the issue, it is a voluntary code and the Ministry cannot compel companies to adopt it. A proposed Sexual Harassment Bill, which could give effect to the United Nations Convention on the Elimination of All Forms of Discrimination against Women that seeks to eliminate as far as possible discrimination involving sexual harassment in the workplace, was rejected by Parliament. In the absence of a specific statute, sexual harassment at the workplace is often dealt with as dismissal cases under the Industrial Relations Act 1967. This prevents our courts from dealing with sexual harassment issues such as the burden of proof, definition and other matters. This is important as many sexual harassment cases are unreported because of unawareness on the part of the victim as to whether the action actually constituted sexual harassment, and if so, where to complain and what to do. Apart from the legal implications of sexual harassment, sexual harassment could also affect the well-being of the victim.
DEVELOPMENT OF DORMANT WAQF PROPERTIES: APPLICATION OF TRADITIONAL AND CONTEMPORARY MODES OF FINANCING
Authors: Sadique Muhammad Abdurrahman
Published: October 2018

Maintenance of waqf assets and keeping them in a productive state is emphasized in Islamic legal literature. In addition to traditional avenues, jurists have sanctioned certain special modes for sustaining awqūf, in order to ensure their continuance. Due to the specific legal nature of waqf assets in sharī‘ah, some contemporary modes of financing are not readily practicable in the context of waqf. Equitybased financing modes where a joint venture is initiated with the waqf assets forming part of the joint capital are not acceptable, as such modes involve partial transfer of waqf-ownership. Decreasing partnership and other formats proposed may be used for financing some waqf projects, with due observance of sharī‘ah guidelines. Due to concerns that arise in certain modes principally relating to the issue of ownership, formats based on ijūrah and istisnūʿ appear best suited for financing awqūf.
MUSLIM WIFE’S RIGHTS TO MAINTENANCE: HUSBAND’S DUTY TO MAINTAIN A WORKING WIFE IN ISLAMIC LAW AND THE LAW IN MALAYSIA
Authors: Mohd Azizah , Hj Ibrahim Badruddin
Published: October 2018

Islamic law imposes a duty on the husband to maintain his wife. This duty arises as soon as the marriage contract is completed. The duty to maintain her continues until the contract of marriage ends either through death or separation. This paper seeks to examine the provisions of Islamic law on the husband’s duty to maintain a working wife. The examination extends to the adequacy of provisions of the law in Malaysia governing maintenance of a Muslim wife. The paper will further analyze the law on the extended duty of the husband to maintain the wife, even though the wife is working and especially earning a good salary of her own.
CONSUMER PROTECTION IN THE SUPPLY OF SERVICES: A COMPARATIVE STUDY BETWEEN THE CONSUMER PROTECTION ACT 1999 AND ISLAMIC LAW
Authors: Abu Bakar Elistina , Amin Naemah
Published: October 2018

The Consumer Protection Act 1999 (CPA) that came into force on 15 November 1999 represents a milestone in consumer protection in Malaysia.1 It has several important provisions, some of which are more beneficial than those found in the law of contract and law of tort since its objective is specifically to protect the interest of consumers. The statute is applicable to both goods and services but the provisions on services are very important because previously the laws regulating the supply of services seem to be left behind compared to those regulating goods. The aim of this paper is to examine the relevant provisions of the CPA and make a comparative study with the protection available under the Islamic law of muʿāmalāt. The central discussions are on section 53, section 54 and Part IX of the CPA since they deal specifically with the supply of services. The liabilities of the service providers are scrutinised as well as consumers’ rights of redress
PALESTINE, INTERNATIONAL LAW AND MUSLIM UNITY
Authors: Ishan Jan Mohammad Naqib
Published: October 2018

The Palestine issue is a heart breaking politico-legal issue that has remained unresolved for so long. The issue started immediately after the disintegration of the Ottoman Empire and following the occupation of Palestine by Great Britain. Britain disregarded the will of the majority of population, facilitated, directly or indirectly, Jewish settlements and supported foreign- led Zionist movement by making an unjust and illegal promise to them to create a state for Jews in Palestine which it eventually did and in doing so it further complicated the Palestine issue – an issue which the League of Nations was unable to solve due to its lack of commitment and its weak organizational structure. The issue has continued till today and is termed as “the most serious and prolonged unresolved political and human rights issue on the agenda of the United Nations (UN) since its inception.” The inability of the UN to resolve the Palestine issue is not due to the fault of international law but due to the lack of commitment of some of the powerful members of its executive organ, that is the Security Council. These powers disgracefully have shown passivity and apparent indifference about the long and cruel Israeli occupation of Palestine. As this paper explains, the indifference on the part of the UN Security Council has enabled the Zionist state of Israel to pursue with impunity its aggressive wars, its ethnic cleaning strategy, its settlements policy, its blockades of the Palestinian cities and towns and its denial of the Palestinians’ inalienable right of self determination. If the powerful nations of the world failed Palestine and its people, we the Muslims must not follow suit. We must stop our infighting and unite our strength and do everything that is peacefully possible to help Palestinians to find a just solution to their problem and if possible to restore Palestine to its historical status.
THE APPLICABILITY OF THE UṢÛL AL-FIQH PRINCIPLE “ISTIṢHŪB” TO THE PRESUMPTION OF DEATH OF A MISSING PERSON IN ISLAMIC LAW OF SUCCESSION AND MALAYSIAN LAW
Authors: Abdullah Mohamad Asmadi
Published: October 2018

The rights of inheritance do not arise until and unless the death of the praepositus and the survival of legal heirs are legally established. These two conditions may be easy to ascertain, but are in fact problematic when dealing with the case of uncertainty of death such as a missing person, because the death is not known. The ascertainment of death and the survival of legal heirs in a missing person case is extremely important because it determines whether any rights of inheritance exist or not. This article seeks to examine the principle of Uṣûl al-Fiqh “Istiṣḥūb”and the approaches undertaken by Muslim scholars to ascertain the related rights of succession involving missing persons. The article analyzes the relevant legal aspects of the applicable laws in Malaysia pertaining to the succession involving a missing person either as a praepositus or a legal heir. It also examines the jurisdictional conflict between the civil court and the Syariah court in Malaysia pertaining to the presumption of missing person’s death in relation to Islamic law of succession.
SOCIO-ECONOMIC AND RELIGIO-LEGAL IMPORTANCE OF ESTATE DISTRIBUTION IN ISLAMIC LAW
Authors: Smael ISMAEL Saka
Published: October 2018

The institution of inheritance is as old as the world itself. It occupies a vintage position in any given society whether such society is primitive, developed or developing. Therefore, because of the status of this institution, no society or legal system can afford to close its eyes to the importance of estate distribution generally and in Islamic Law in particular because it constitutes a major method of acquisition of wealth and property. This paper therefore examines the importance of estate distribution in Islamic Law upon the demise of a Muslim from economic, social, religious and legal perspectives.
THE DECISION BY A JUDGE ON THE BASIS OF HIS PERSONAL KNOWLEDGE
Authors: Hayat Shaukat
Published: October 2018

According to some muslim jurists the decision by a judge based on his personal knowledge is one of the admissible modes of proof. The personal knowledge of a judge here means the judge who is an eyewitness to a fact in issue of a case filed in his court for decision. Should he decide on the basis of his personal knowledge or should he decide on the basis of the statements of the evidence which is contrary to his personal knowledge? Muslim jurists of the different schools of thought have a consensus on the view that a judge can validly decide about the credibility or otherwise of a witness on the basis of his personal knowledge. Two groups of muslim jurists have differing opinion as to whether a judge can validly decide cases on the basis of his personal knowledge. The paper examines the opinion of both groups in the light of their arguments from Qur’an, Sunnah and other sources of Islamic Law. The validity of both schools are discussed with preference of one of them as most suitable for application in Muslim countries.
APPLICATIONS OF DECREASING PARTNERSHIP (AL-MUSHĀRAKAH AL-MUTANĀQIṢAH) IN ISLAMIC BANKING: SOME RELEVANT SHARIʿAH ASPECTS
Authors: Sadique Muhammad Abdurrahman
Published: October 2018

Decreasing partnership based modes could be adopted with advantages for financing asset procurement as well as projects in a variety of situations. The shari‘ah admissibility of this mode essentially depends on the reality and independent functioning of the various contracts. Diverse capacities the parties undertake through the component contracts should be effectively reflected, especially through fulfilling the duties pertaining to ownership and lease, and accepting the liabilities involved. Gaining legal recognition for the component contracts should be attempted. In decreasing partnership for ventures, the equity structure should not be based on terms favourable to one party alone. Replacing the legally binding promise to purchase and giving the partners a choice in the matter, could be more conducive towards the equity relationship.
THE PROPERTISATION OF TRADITIONAL KNOWLEDGE: SEEKING A BASIS IN THE SHARIʿAH
Authors: Adam Ibrahim Kayode
Published: October 2018

This paper seeks to examine the implications of the propertisation of traditional knowledge from the Islamic law point of view. It proceeds on the premise that absence of direct Islamic legal ruling on the subject does not foreclose the chances of evaluating the modern protection policies from the SharÊÑah context. It is argued that certain SharÊÑah principles can be suitably adapted to justify the protection of traditional knowledge and address the needs of its holders. It finds, among others, that the nature of traditional knowledge as oral knowledge transmitted from one generation to another simply illustrates the original perception of knowledge in Islam and is thus qualified to be regarded as such. Further, while all knowledge belongs to Allah, Islam does not preclude the status of man as developer of new utilities for knowledge use. Therefore, holders of traditional knowledge deserve to be accorded recognition and primacy for their contributions to the conservation and sustainable use of the global biodiversity. The paper concludes that there is evidence to support the recognition of traditional knowledge, being a variant of manfaÑah as a form of al-mÉl (property) worthy of protection.
LEGAL EDUCATION IN INDIA: PROBLEMS AND CHALLENGES
Authors: Nirmal B. C.
Published: October 2018

This article makes some observations about legal education in India by locating it within a wider context of legal education reform that is taking place in Law Schools across the world in the wake of globalizationled and globalization-induced changes in the nature and needs of legal profession. For being both intellectually challenging and professionally relevant, legal education should be more responsible than ever before to the legal needs of the community national as well as international , and the learning needs of students to become professionally competent to play their role in an increasingly transnationalized legal service market. Any effort to restructure and reorient legal education to attain these goals will be an uphill task for any school. This article begins with exploring the implications of globalization for legal education and then turns to nature, aims and objectives of legal education. The article then looks at the possible changes required to be made in the existing curriculum for undergraduate law students in order to make the legal education more relevant and meaningful for its consumers. The focus then shifts to issues concerning methods of teaching, clinical experience and assessment of students. This article then considers issues arising from the proposal of the Bar Council of India to reduce the period of Masters programme and then builds a strong case for strengthening a research tradition in Law Schools. The focus then shifts to measures that are necessary to attract and retain better faculty and also to the regulatory role of the Bar Council of India in the field of legal education. The article concludes with some reflections on the promise of a different vision of legal education.
Ahmad Ibrahim Memorial Lecture; Intensity of Judicial Review: The Way Forward
Authors: Ram Gopal Sri
Published: October 2018

It is a fundamental requirement of a democratic state that all forms of state action must be supportable in law - either a statute or the common law. Illegal state action is incompatible with a democratic society. This proposition lies at the heart of the rule of law.
THE CONVENTIONAL RESTRICTIVE AND THE MODERN LIBERAL INTERPRETATION OF SECTION 30 OF THE EVIDENCE ACT
Authors: Mohamed Akram Mohd. Shair
Published: October 2018

Section 30 of the Evidence Act allows the confession of an accused to be admitted against the co-accused. However, since it is a radical and dangerous departure from the rule that hearsay should not be admitted, the Indian and Malaysian Courts have not recognized such confession as falling within the definition of ‘evidence’. It can only be used as a last resort and hence has been strictly construed throughout. But Singaporean Courts have now given it a liberal construction and elevated it to the status of a rule of evidence. The researcher’s view is that this is dangerous and our courts should be wary of following Singaporean Courts’ judicial thinking.
HUMAN TRAFFICKING: THE INTERNATIONAL, MALAYSIAN LEGAL FRAMEWORK AND SHARIAH PERSPECTIVES
Authors: Ab Hamid Zuraini , Mokhtar Khairil Azmin
Published: October 2018

Slavery and forced labour have been accepted to be against humanity. These practices are expressly prohibited by the Federal Constitution in Malaysia. Although the prohibition of human trafficking is not expressly mentioned in the Constitution, it could be regarded as one of the most heinous crimes according to the letter, intent and spirit of the constitution. This is related to the fact that human trafficking is much associated with modern day slavery and therefore is against the ideology of the Malaysian nation and acceptable norms of the international community and Islamic law and Shariah values. The paper will explore the available international human rights and the laws governing human trafficking in Malaysia. The research is based on the current situation and cases of human trafficking in Malaysia. By understanding and observing these, it will help to conclude that trafficking has violated human rights and governing laws in Malaysia. The paper also looks at Islamic law perspectives on human trafficking, and to a certain extent, the stand taken by Muslim countries on the issue. The paper is mainly a conceptual and doctrinal discussion combined with critical legal analysis of certain laws in Malaysia. It will also involve some comparative elements with some Muslim countries where necessary.ABSTRAKPerhambaan dan buruh paksaan adalah bertentangan dengan peri kemanusiaan oleh masyarakat seluruh dunia. Amalan-amalan tersebut adalah jelas dilarang dalam Perlembagaan Persekutuan Malaysia. Walaupun larangan penyeludupan manusia tidak dinyatakan dengan bertulis dalam Perlembagaan, perbuatan tersebut dianggap sebagai salah satu jenayah yang paling kejam berdasarkan nilai-nilai yang tersurat, yang tersirat, dan juga dengan semangat perlembagaan. Tanggapan tersebut berkait rapat dengan fakta bahawa penyeludupan manusia berhubung-kait dengan perhambaan zaman moden, maka dengan itu penyeludupan manusia adalah bersalahan dengan ideologi negara Malaysia, dan juga bertentangan norma-norma masyarakat antarabangsa, dan juga dengan undang-undang Islam dan prinsip Syariah. Dalam artikel ini pemeriksaan dibuat terhadap undang-undang hak asasi manusia antarabangsa yang sedia ada dan undang-undang Malaysia yang berkaitan dengan jenayah penyeludupan manusia. Penyelidikan dalam artikel ini mengambil kira isuisu semasa dan kes-kes perdagangan manusia di Malaysia. Pemahaman dan pemerhatian tersebut akan membantu untuk membuat kesimpulan bahawa penyeludupan manusia adalah melanggar hak asasi manusia dan undang-undang di Malaysia. Artikel ini juga mengambil kira perspektif undang-undang Islam terhadap perdagangan manusia, dan seboleh mungkin memuatkan perbincangan mengenai pendirian yang diambil oleh negara-negara Islam mengenai isu ini. Penulisan ini merupakan satu perbincangan konseptual dan doktrinal dan digabungkan dengan analisis kritikal undangundang yang berkaitan di Malaysia. Ia juga akan mengandungi elemen perbandingan dengan merujuk kepada beberapa buah negara Islam.
CHILDREN’S PARTICIPATION IN CUSTODY AND ACCESS PROCEEDINGS
Authors: Che Soh Roslina
Published: October 2018

The right of children to express their views in all matters affecting their lives is regarded as one of the important factors that concern their welfare. The United Nations Convention on the Rights of the Child and social science research support children's right to participate in family law proceedings, particularly in decisions of custody disputes, though there is no clear consensus on how this should be done. Many jurisdictions such as Australia and England incorporate several measures in their legislations in ensuring the meaningful involvement of children in family dispute resolution processes. The laws in Malaysia similarly uphold this right but do not provide specific measures to obtain the views of children. This paper seeks to discuss the importance of the child’s participation in the context of custody disputes and to examine the measures in which the views of children can be obtained. In doing so, it attempts to provide an overview of the current laws and the approach of the Civil and the Shariah courts in Malaysia in considering the views of children in custody disputes. For purposes of comparison, it briefly examines the legislations and the court practices in Australia and England on this matter. The purpose is to determine the best measure to be adopted by Malaysia and to propose statutory and non-statutory changes to ensure that children in Malaysia are given the right to have their voices heard in family law proceedings.
GAS FLARING IN THE NIGER DELTA OF NIGERIA: A VIOLATION OF THE RIGHT TO LIFE AND COMMENT ON THE CASE OF JOHNAH GBEMRE V SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED
Authors: Abdulkadir Abdulkadir Bolaji
Published: October 2018

The relationship between the protection of the environment and human rights was first established in the Stockholm Declaration of 1972. Since then, it has become acknowledged that human rights such as the right to life can only be enjoyed in a pollution free environment. It is on this premise that this paper seeks to examine how gas flaring, being one of the major environmental challenges in the Niger Delta, is affecting the right to life of the inhabitants. Materials are sourced from both primary and secondary sources to analyse the issues in contention. Data and information are extracted from the Amnesty International Report, United Nations Environmental Programme Report, and the United Nations Development Programme Report. Also, an analysis of the case of Johnah Gbemre v Shell Petroleum Development Company Of Nigeria Limited is done in order to evaluate the judicial response on this perspective.
A CRITICAL EVALUATION OF THE LEGAL FRAMEWORK FOR SME’s LOAN REDEMPTION IN NIGERIA
Authors: O. Sambo Abdulfatai , O. Abdulkadir Abdulrazak , B. Abdulkadir Abdulkadir
Published: October 2018

Small and medium scale enterprises (SMEs) scheme has been recognised as a vehicle for rapid sustainable economic development, industrialisation, employment generation, poverty alleviation, to mention but a few. No doubt, the country is in dire need of these indices of peoples’ welfare. Yet, conventional banks are reluctant to grant credit facilities to SMEs in order to boost their capital base and sustain their enterprises. The reason is that the existing legal frameworks are inadequate in ensuring efficient, effective and prompt loan recovery by the banks from the SMEs. This is more so that the beneficiaries of the SMEs loans are not required to pay interests when repaying the loan. Consequently, the positive effects of viable, effective and efficient SME schemes are not felt in the country. Based on this premise, this paper critically evaluates the adequacy or otherwise of legal/policy frameworks on SME loan redemption in Nigeria. To achieve this, it assesses the enforcement mechanism against beneficiaries of the SMEs scheme. The paper finds that the legal framework for redeeming loans against SMEs in Nigeria is inadequate owing to weak and ineffective enforcement mechanisms. It concludes that there is a need for a dependable, viable, effective and justly-balanced legal framework that would ensure smooth and reliable loan redemptions from SMEs.
FOUNDATIONS OF MORAL RIGHTS IN ISLAMIC SOURCES AND HISTORY OF AUTHORSHIP IN ISLAMIC CIVILISATION
Authors: Elmahjub Ezieddin
Published: October 2018

Moral rights play an important role in modern copyright systems. They are part of the bundle of copyright authors’ exclusive rights. Moral rights entitle copyright holders to claim paternity of the creative work, preserve its integrity and- in some jurisdictions- to withdraw the work from the market. Copyright literature in the Arab world introduces moral rights as concepts which emerged and developed in Europe. This literature does not systematically and comprehensively refer to the existence of historical traditions on moral rights in Islamic sources and history of authorship. Yet, concepts related to moral rights emerged in Islamic societies hundreds of years before their formation and development in Europe. Therefore, in countries with dominant Muslim populations the protection and enforcement of moral rights should be thought of as relevant to the cultural and local context and not as a product of Western civilisation. This paper introduces evidence which shows that concepts of moral rights such as attribution and integrity are part of Islamic religious culture and traditions of authorship. This evidence is based on the main sources of Islamic Sharī’ah and the traditions that emerged from the recording of these sources. In addition, this evidence is inferred from the development of authorship in Islamic civilisation.
THE GROWTH OF PATIENT AUTONOMY IN MODERN MEDICAL PRACTICE AND THE DEFINED LIMITATIONS UNDER THE SHARĪ’AH
Authors: Jahn Kassim Puteri Nemie
Published: October 2018

The concept of patient autonomy or self-determination is one of the dominant ethos in modern medical practice. The demands by patients to be given respect, independence and dignity in medical decision making have been heeded and mirrored in many ethical codes and judicial decisions. The development of the law relating to informed consent, euthanasia, confidentiality, and reproduction issues have clearly reflected the reinforcement of patient autonomy in which patients’ choices should be free from coercion and unwanted interference. Paternalistic infringement in these areas have been regarded as outmoded and are disfavoured, as respect for a patient’s right to determine his own destiny is given precedence.  The escalating medico-legal cases have further emphasised the salience of this concept in the provision of medical services. Nevertheless, while the importance of patient autonomy is duly recognised, the advancement of this concept is not without its limitations; it accordingly has to evolve within the perimeters of one’s religious and cultural precepts. For Muslim patients, the right and ability to make their own choices and decisions about medical care and treatment must be within the defined limitations of the Sharī’ah. The emphasis on individualism, personal gratification and the denial of faith in medical decision making is inconsistent with Islamic values. Therefore it is necessary that principles relating to the concept of patient autonomy be developed within the sphere of the Sharī’ah, in order to ensure their coherence with the doctrinal requirements stipulated in Islam.
RIGHTS OF FUTURE INTEREST AS MATRIMONIAL PROPERTY: SPECIAL REFERENCE TO EARNING CAPACITY
Authors: Ibrahim Norliah , Abd Ghadas Zuhairah Ariff
Published: October 2018

Traditionally, the claims of matrimonial property are mainly confined to existing and personal property which exist or were acquired during the marriage prior to the divorce, such as buildings, land, vehicles, etc. However, with the changes in the economic sources and social behaviour of the modern society, whereby earnings and proprietary rights are no longer confined to merely property but also include future interest and future earnings such as investments, trust fund and business ventures, it is perceived that the scope of claims on matrimonial property shall also be revolutionised to include claims in future earnings of the divorced parties.This paper discusses the legal principle which the court could apply when it comes to claims on future interest as matrimonial property. The case law analysis is merely confined to the Malaysian precedents and the analogy of human capital earning is used by the writers to justify the possibility of claims in all types of future earnings as matrimonial property.
RULE OF LAW: AN INITIAL ANALYSIS OF SECURITY OFFENCES (SPECIAL MEASURES) ACT (SOSMA) 2012
Authors: Dhanapal Saroja , Sabaruddin Johan Shamsuddin
Published: October 2018

The term ‘Internal Security Act’ is often given to a piece of legislation laying down regulations that enable the executive government of a jurisdiction to preserve the internal security of the nation. In some jurisdictions, it authorises the government to arrest and detain individuals without trial. The Malaysian Internal Security Act (ISA) 1960 was originally enacted by the Malaysian government in 1960 under Article 149 of the Malaysian Constitution. However, there were numerous concerns raised as to the implications of this Act at various levels over the years and this led to it being repealed. On 15 September 2011, ISA 1960 was repealed and replaced by the Security Offences (Special Measures) (SOSMA) Act 2012. SOSMA 2012 was enacted in answer to the criticism of the ISA 1960 and it does show some positive changes. However, the debate as to the concerns with regards to ISA has not been laid to rest. It is advocated and generally accepted by most people around the world that the nation’s emphasis on domestic stability cannot be said to negate the presence of the Rule of Law (RoL). The purpose of this research is to analyse the relatively intriguing new Act, the SOSMA 2012 with the specific objective to identify whether it upholds the principles deemed necessary under the RoL.
THE CONTINUING DEBATE ON DEATH PENALTY: AN EXPOSITION OF INTERNATIONAL, MALAYSIAN AND THE SHARI'AH PERSPECTIVE
Authors: Abdul Aziz Shamrahayu
Published: October 2018

The debate on the death penalty seems endless. Some see the death penalty as a form of human rights violation, while others consider it as a means to preserve and protect the rights of others. This article provides an exposition of the death penalty from the international, Malaysian and Shari‛ah perspectives. In doing this, a brief philosophy of human rights is given. Many international legal instruments, provisions of the Malaysian Federal Constitution and other relevant statutes, court decisions and the Qur’anic provisions and Sunnah are used to enrich the discussion. The study finds that the international instruments do not forbid nor encourage the death penalty. Thus, the experience of each country may contribute to the status of this capital punishment; some countries are still retaining it, while some others have repealed the punishment. Be that as it may, the Islamic legal position on the punishment remains unchanged but its application may be varied to suit different times and situations.
AIRLINE PASSENGERS’ SCREENING: AN APPRAISAL FROM THE ISLAMIC LAW PERSPECTIVE
Authors: Mustapha Adua Ismail , Hamid Abdul Ghafur , Abdul Wahab Mohammed Iqbal
Published: October 2018

The alarming rate of aviation offences such as the offence of aircraft hijacking in the 21st century warrants the need to adopt various preventive and suppressive measures to prevent these offences. The current method to prevent and suppress these offences is to subject every passenger to screening of their body and baggage through the imaging technologies and physical searching called “pat down”, the purpose of which is to detect the presence of weapons, explosives and other dangerous materials that will aid the commission of any of these offences. As a sequel to the adoption of these methods, many queries have been raised especially from the human rights activists who argue that the so-called imaging technologies intrude on the fundamental human rights of passengers. While some passengers support the argument of the activists, others are in support of the aviation security practitioners. The question therefore is: what is the position of Islamic law on the screening of airline passengers using imaging technology? The present article intends to answer this question.
ANTI-TERRORISM FINANCING LAWS IN MALAYSIA: CURRENT TRENDS AND DEVELOPMENTS
Authors: Zubair Aishat Abdul-Qadir , Oseni Umar Aimhanosi , Yasin Norhashimah Mohd.
Published: October 2018

Malaysia has continued to proactively enhance its legal framework for combating terrorism financing as a phenomenal response to the global war against terrorism. This paper revisits the provisions relating to anti-terrorism financing in the Anti-Money Laundering and Anti-Terrorism Financing Act 2001 (AMLATFA), and the recent amendment made to the Act in 2014, as well as the Penal Code of Malaysia. While this study focuses on Anti-Terrorism Laws in Malaysia, AMLATFA forms the crux of the discussion in the light of current developments in anti-terrorism legislation in Malaysia. A brief Islamic legal perspective on anti-terrorism financing is given in the light of specific provisions of AMLATFA and the Penal Code. The paper finds that Malaysia is keeping up with the global developments in Anti-Terrorism Financing laws and this has helped it to maintain a good image in the global world as a country that is ready to combat terrorism generally and terrorism financing specifically. With the emerging threats of the self-styled Islamic State in Iraq and Levant (ISIL) in Malaysia and the world at large, there is no better time than now to come up with a more comprehensive law such as the Prevention of Terrorism Act 2015 to complement existing legislations on terrorism financing
Legal Development in Cross-Border Marriages Among Malay Muslims in Malaysia
Authors: Md Hashim Noraini , Abdul Hak Nora , Md Said Muhammad Helmi
Published: October 2018

Cross-border marriages have received a considerable amount of attention in recent years.  Patterns and characteristics of cross-border marriages appear to differ widely among the world’s region and races. This article aims to discuss the legal development and history of cross-border marriages from the perspective of Muslim Malay couples in Malaysia and generally, under the English law.  An analytical legal approach is used in this study to explore the legal developments in such cross-border marriages. The findings of this work are expected to fill the gap in the legal literature on marriages in Malaysia and also provide reference for designing a new improved policy and regulatory framework to deal with the problem.
The Applicability of Administrative Law Principles to Issues of Privatisation in India
Authors: Lukose Lisa P.
Published: October 2018

Privatisation is an exclusive subject of governmental policy in several countries. The reasons for privatisations may mainly be political and economical; nevertheless, it raises many legal questions. Apart from the constitutionality and legality of the decision on privatisation there are public law issues in administrative law that usually crop up with privatisation decisions. The principle aim of this article is to examine the applicability of administrative law principles in privatisation. In the initial part, the article examines the phenomenon, various approaches towards privatisation, its rationale and limitations. Subsequently, the article analyses different types of privatisation. It also portrays various interfaces between privatisation and administrative law with special reference to India. In the last part, the article is summed up with an appropriate conclusion and suggestions.
The Role of Law Enforcement Agencies in Preventing Dowry-Related Crimes in Bangladesh and India
Authors: Abu Taher Mohammad , Jamaluddin Siti Zaharah
Published: October 2018

Laws are made for implementation. Needless to say, the effective enforcement of laws depends on proper functioning of the law enforcement agencies. Both the Governments of Bangladesh and India have enacted a number of legislations relating to the issue of dowry. Payment of dowry is a social custom still prevalent in both countries where women have become victims of violence every year. Thus, it is the law enforcement agencies that can prevent the women from the menace of dowry-related crimes through the proper application of existing criminal law. In this context, the role of the law enforcement agencies concerning crimes of dowry is crucial. Enforcement of law is a continuous process from the time an offence is reported till the offender is prosecuted and punished. This is a long process involving various stages such as, investigation, prosecution, trial and judicial decision. In this long procedure numerous agencies e.g., the police, the judiciary and the lawyers play their roles. The article looks at the position in Bangladesh and India because unlike India, where there exists the dowry prohibition Officer who deals with dowry demands, Bangladesh lacks a similar enforcement mechanism. Thus, the objective of this article is to examine the position in both countries where the role and functions of the law and law enforcement agencies are made. The article is developed based on the analysis of secondary sources and the decisions of the judiciary of Bangladesh and India concerning dowry-related crimes.