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Shari'ah, Law, Islamic Finance and Muslim News
Monthly Archives: July 2008
July 24, 2008
DR. ZULKIFLI HASAN
My Story
INTERNATIONAL WORKSHOP IN ISLAMIC ECONOMIC, BANKING AND FINANCE, 8th-9th JULY 2008, Jointly organised by Durham Islamic Finance Programme, Durham University and Center for Islamic Area Studies at Kyoto University, KIAS, Japan; and Global COE Program: In Search of Sustainable Humanosphere in Asia and Africa, Japan.
Front line from left: Dr. Zurina Shafii, Professor Rodney Wilson, Profesor Kosugi, Dr. Mehmet, Professor Habib Ahmed and Dr. Shahida.
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July 23, 2008
DR. ZULKIFLI HASAN
Islamic Bonds Issuance Defies Gloom
Quoted from the Financial Times By David Oakley
Islamic corporate bond issuance in the Gulf has soared in the past year in spite of the credit crisis and deteriorating global economic outlook.
Corporate bonds issued in the Gulf rose to $17bn at the end of June, compared with $14.5bn at the end of June 2007 – a 17 per cent increase, according to Trowers & Hamlins, the international law firm.
Significantly, 60 per cent of the bonds were bought by western institutions as European and US investors sought more exposure to the Gulf, which continues to grow strongly in defiance of the global slowdown.
Bankers say Islamic bond, or sukuk, issuance is also rising sharply in Asia, although the Gulf is increasingly considered the ideal place to invest because of the soaring oil price, which has boosted wealth in the Middle East.
The Gulf economies, which comprise Bahrain, Kuwait, Oman, Saudi Arabia, Qatar and the United Arab Emirates, have more than doubled in size since 2002 as the oil price has quadrupled from $30 a barrel to more than $130.
Neale Downes, partner at Trowers & Hamlins, said: “Appetite for Islamic debt has been remarkably resilient to the credit crunch and shows just how low-risk investing in the Gulf corporates is now seen by western institutions.”
He added: “A few banks in the region have taken subprime writedowns, but there is so much liquidity in the Gulf with the high oil price, that recapitalising these institutions has not been a major challenge. Inevitably, a lot of this oil money is being used to buy Islamic debt.”
The issuer profile of sukuk, which are structured to pay profits rather than interest because of religious laws, is also changing as the economies become more sophisticated, with financial services companies contributing more to economic growth than in the past.
The number of financial services companies issuing Islamic bonds has risen sharply. They make up 25 per cent of the companies raising Islamic bonds in the region. Real estate companies, which have traditionally raised the most money, made up 37.5 per cent, a sharp fall from the previous year of 60 per cent.
The overall sukuk market, which includes government bonds, is valued at $80bn, making it one of the fastest growing sectors in the world as it has grown from nothing at the start of the decade. The first sukuk bond was issued in 2002 by the government of Malaysia.
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July 11, 2008
DR. ZULKIFLI HASAN
How safe is cash in a bank beyond UK regulation?
From Times By Patrick Hosking
A reader called the other day. Were her savings 100 per cent safe, she wanted to know? She had her nest-egg invested with Icesave, a savings product offered by Landsbanki, the Icelandic bank.
The answer ought to be an emphatic and unambiguous “yes”. Icesave is operated by the UK branch of Landsbanki and is heavily promoted to British savers as a perfectly safe, conventional bank account. Two hundred thousand Britons have plunged more than £5 billion of their savings into it, attracted by high rates of interest.
Nine months after the Northern Rock panic and in the week that the Chancellor announced plans for a sparkling new depositor protection scheme, it seems unthinkable that there could still be any ambiguity over the guarantees provided to savers. But the facts are not clear for this and other non-British banks.
Icesave tells depositors that the first £35,000 of their savings is 100 per cent protected – “the same as every FSA-regulated bank and building society in the UK”.Well, up to a point. In the unlikely event of Landsbanki failing, Icesave depositors would have to claim the first €20,887 (£16,500) of their losses not from the UK’s Financial Services Compensation Scheme (FSCS) but from a deposit protection fund run out of Reykjavik.
After several days of prodding and digging, I have, finally, ascertained the vital statistics of this fund, the Depositors’ and Investors’ Guarantee Fund. It describes itself, not very accurately, as “prefunded” but actually has £88 million in the kitty. That’s to cover deposits totalling £13.6 billion, 154 times as much.
In theory, the fund can have a whip-round from other member banks in the event of a default. In theory, it can borrow, though who from is not made clear. In theory, the Icelandic Government would, I am told, be obliged under a European Union directive to step in to fund any shortfall, although I cannot find any explicit written guarantee of this. Iceland is not a member of the EU.
In practice, in the unlikely event of Landsbanki failing, it’s quite possible that other Icelandic banks would be in similar difficulties and in no position to chip in. In practice, the Icelandic Government might struggle to find the money in the event of a big failure. The total deposits covered are twice the country’s entire GDP.
Iceland is a tiny economy with a population smaller than Coventry’s. It is difficult to imagine Icelandic taxpayers, at present facing a nasty recession, rampant inflation and a currency on the skids, willingly shouldering massive tax hikes to bail out British savers.
It is a bit like relying on a pocket handkerchief as a safety net for an elephant. Very probably, the elephant will never fall. Very probably, the elephant will not be allowed to fall. Only depositors themselves can say whether the extra slither of interest offered by Icesave, which frequently appears at the top of best buy tables, is worth the anxiety.
There is nothing unusual about the lifeboat fund having little in the kitty. Neither does the FSCS. The difference is that, in extremis, the British Government can print pounds to bail out UK depositors. Reykjavik cannot. Moreover, no one wants to debate this. The FSCS tells depositors of any UK branch of a bank based in the European Economic Area, including Iceland, that their savings are “protected”, but it does not say by whom. Icesave accuses me of being alarmist, jingoistic and indulging in absurd hypotheticals.
Meanwhile, a very senior British regulator I asked about it replied: “You wouldn’t really expect me to know the detail of the Icelandic deposit scheme, would you?” Well, yes, I would, actually, given the fragility of the Icelandic economy and currency and the army of Brits piling into Icesave. It is precisely these low-probability, high-impact events that regulators are supposed to weigh up and, if necessary, guard against.
At the very least, depositors in this, and other British branches of non-EU banks deserve more clarity and information – from Icesave, from the Icelandic Government and from the FSCS. Ordinary depositors should not have to spend days trying to get at the facts.
Landsbanki is highly rated and there is no reason to think that it could go wrong. But if it were to go wrong, things could get very messy. Because of the ambiguity, the pressure would be on British taxpayers and British banks to come to the rescue. That cannot be right for a bank over which the British authorities have no supervisory power.
— Homer Simpson once tried to steal used cooking grease from the kitchens at Springfield High to make biodiesel. In a bizarre example of life imitating art, those enterprising people half-inching the nation’s drain covers and church roofs seem to be diversifying and following his example.
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July 4, 2008
DR. ZULKIFLI HASAN
The cases that changed Britain: 1972-2006 (Part V)
DPP v Ray

July 27, 1973
This case settled an important principle of law applicable to people caught legging it out of restaurants without paying. It has been applied countless times since. After eating a meal in the Wing Wah restaurant in Gainsborough, Lincolnshire, Roger Ray, a university student, and his three companions decided not to pay. About 10 minutes later, after waiting for the waiter to leave the dining room, they made off. Ray was convicted under the Theft Act (now covered by the Fraud Act 2006) and the conviction was upheld by the House of Lords. The law lords ruled that Ray had impliedly stated in ordering the meal that he intended to pay, and that by remaining in his seat after deciding not to pay had ostensibly continued that earlier implied statement, thereby deceiving the waiter.
Haughton v Smith

November 22, 1973

What happens if someone is attempting to commit a crime that is legally impossible? Is it a criminal attempt? The House of Lords gave the answer in this cops and crooks caper. Police officers stopped a large van on the motorway travelling south from Liverpool and found it contained stolen goods. The police decided to allow the men to continue their journey along the motorway to a service area in order to catch the receivers. One of those waiting, Roger Smith, was later convicted of attempting to handle stolen goods, even though the Crown conceded that at the time of the alleged offence the goods, being in the lawful custody of the police, ceased to be stolen. But the decision was overturned by the House of Lords, which said there could be no conviction in such circumstances. In order to constitute the offence of attempting to handle stolen goods, the goods in question must be stolen. These goods were not because they were in the lawful possession of the police. It is not a crime to try to commit a crime that, in the circumstances, it is impossible to commit.
R v Kovacs

December 22, 1973
This influential criminal law case concerned what happens when someone gets an advantage from one person by having deceived another. Stephanie Kovacs knew that her bank account was overdrawn and that she no longer had authority from her bank to have possession or use of her cheque book or her cheque guarantee card. Nevertheless, she wrote a cheque to pay for a railway ticket costing £2.89. Her bank was bound, because of the cheque guarantee card, to honour the cheque, but Kovacs was convicted of dishonestly obtaining a pecuniary advantage (an increased overdraft) by deception. Her appeal was dismissed. The court held immaterial that the person deceived — the railway clerk — was not the person from whom the pecuniary advantage was obtained by the deception.
Jackson v Horizon Holidays Ltd

February 6, 1974
The sorts of compensation aggrieved holiday makers can claim when things go wrong was one of the key points decided in this case. A family holiday to Sri Lanka was not all it was cracked up to be. Julian Jackson, the father of the family, sued the tour operator and won an award of £1,100 damages for distress and inconvenience. The tour operator appealed. Several legal points were in issue. The court decided that damages for loss of a holiday may include not only the difference in value between what was promised and what was obtained but also damages for mental distress, inconvenience, upset, disappointment and frustration. It stated that where a person had entered into a contract on behalf of himself and others who were not parties to the contract, he could sue on the contract for damages or loss suffered not only by himself but also by the others in consequence of breach of the contract.
Van Duyn v Home Office

December 5, 1974
The UK joined Europe in 1972. This case a few years later concerned how European law should be applied — what was the status of a European directive? Yvonne van Duyn, a Dutch woman, wanted to enter the UK to take up employment with the Church of Scientology. She was refused entry and challenged the decision under a European directive guaranteeing the freedom of movement for workers. The High Court made a preliminary reference to the European Court of Justice (ECJ). The question arose whether the rights conferred under the Article of the EEC Treaty were directly applicable and enforceable by an individual in the courts of a member state. The ECJ ruled that the rights were enforceable without the need for further laws in each state to have been passed.
Attorney-General’s Reference No. 1 of 1975

April 26, 1975

What does the law say in the case of someone who secretly puts alcohol in the drink of a person who then goes on to drive. Such a prank or plot is, of course, dangerous and potentially lethal. This case was an Attorney-General’s Reference, a procedure by which the appeal court can rule on a point of law that the Attorney-General wants clarified. The Court of Appeal was asked to consider the position of an accused who had surreptitiously laced, with double measures of spirits, an otherwise innocuous drink of a friend when he knew the friend would shortly be driving home. As a result, the friend was guilty of driving with an excess of alcohol in his blood. The driver was guilty in that the driving offence is one of strict liability — it doesn’t matter whether you did it on purpose, or accidentally, just that you did it. It was held that the person accused of lacing drinks in these circumstances was guilty as a secondary party provided he knew that his friend was going to drive and also that the alcohol surreptitiously given would bring his blood-alcohol concentration above the prescribed limit. The Court pointed out that the “generous host” who kept his guest’ s glass topped up would not necessarily be guilty in the same way since in that case the guest would be aware of the contents of his glass and could make his own decision as to whether to drive.
R v Blaue

July 17, 1975
In criminal law, can a wrongdoer defend himself by saying his victim’s fate wouldn’t have been so bad if she had not had the unusual beliefs she did have? This case answered that question. Robert Blaue stabbed the victim, who was taken to hospital. The victim, a Jehovah’s Witness, was informed that without a blood transfusion she would probably die. She refused to accept a transfusion as it would have been contrary to her religious beliefs. The accused appealed against his conviction for manslaughter at Teesside crown court on the grounds that the victim’s refusal to accept a blood transfusion broke the chain of causation. The court dismissed the appeal. Those who inflict violence must take their victims as they find them. The victim’s refusal to accept treatment does not break the chain, even if it is an unreasonable belief.
DPP v Majewski

April 14, 1976

In this leading judgment, the House of Lords decided that a person who commits a crime but doesn’t know what he’s doing because he is so inebriated can still be convicted if it is not necessary to prove intention for that particular crime. During the course of a disturbance at a pub in Basildon, Essex, Robert Majewski attacked the landlord and two other people, injuring all three of them. When the police arrived, he assaulted an officer, and later, at the police station where he had been taken, he struck two other officers. He was charged with various assaults. At his trial he testified that during the 48 hours preceding the disturbance he had taken a considerable quantity of drugs and that, at the time when the assaults were committed, he was acting under a combination of amphetamines, barbiturates and alcohol. He didn’t know what he was doing and had no recollection of the incidents in question. He was convicted and his appeal was dismissed. The Lords held that unless the offence was one that required proof of a specific intent, it was no defence to that the accused didn’t intend to commit the act alleged. His recklessness was enough to convict him.
R v Bundy

March 12, 1977
Clever arguments for defendants in criminal cases are sometimes confounded by simple and even cleverer ones for the prosecution. This famous case provides a good example of such a thrust, parry and counter thrust. When Dennis Bundy was stopped by police in his car, he had with him some piping, a hammer, a pipe threader and three pieces of stocking. He had been driving around following a woman who was collecting the takings from vending machines in London pubs with the apparent intention of robbing her. He was convicted of “going equipped” for theft when “not at his place of abode”. Bundy appealed on the grounds that, since he lived rough in his car, it was his abode. But in dismissing the appeal, the court held that his car was his place of abode only when after finding a site he had parked for the night, not when he was in transit.
R v Doukas

December 3, 1977
A major judgment on the charge of going equipped to cheat. Joseph Doukas, a hotel wine waiter, had six bottles of his own wine in his coat pockets when going to work. He intended, when a customer ordered wine, to serve one of these bottles which he’d got very cheaply, to make out a separate bill and keep the money that the hotel customer paid him. The scam was that while the waiter would pocket the customer’s money, the hotel wouldn’t notice any loss of income because none of its own bottles of wine were being taken to the tables by the waiter. And the waiter would be making a profit because there was a big difference between the cheap price of the wine he smuggled in to the hotel and the expensive prices on the wine menu. An important question for the appeal court was whether a charge of going equipped to cheat was sustainable because a customer would not have been deceived if he paid for wine and got wine. Doukas’s appeal was dismissed. It was held that customers were deceived because it was reasonable to assume that they’d never have handed over cash if they’d have known that the wine wasn’t the hotel’s but rather that of the waiter’s personal stock being used in a swindle.
DPP v Camplin

April 11, 1978
This was a leading and groundbreaking decision about the law of provocation. Before this case, defendants on charges of murder could plead provocation only by showing they had the power of self-restraint of an adult, even if they were younger. Paul Camplin, a 15 year-old, hit a 50 year-old man over the head with a chapatti pan and killed him. His defence was provocation. He claimed that the deceased had forcibly had anal intercourse with him and then laughed at him, whereupon Camplin had lost his self-control. The judge at Leeds crown court directed the jury to consider whether the deceased’s actions were enough to make a “reasonable man” do what Camplin did. If they were, the killing could be reduced from murder to manslaughter. The judge told the jury to consider not how a reasonable 15-year-old may have responded, but how an adult man would have responded. That was unfair because an adult man might be expected to show more restraint before using lethal force. The jury convicted Camplin of murder. However, on appeal the House of Lords held that the judge ought not to have instructed the jury to disregard his age.
Jaggard v Dickinson

July 26, 1980

People rolling up drunk at the wrong address and breaking a window or lock in order to enter what they think is their property is not an unknown problem in Britain. This case decides an important point of law regarding that scenario. Beverely Jaggard had a good relationship with Ron Heyfron and had his consent to treat his property as if it were her own. One evening after being out drinking she took a taxi to his house in South Ockendon, Essex, but the taxi dropped her outside another, similar looking house on the same street. Not realising in her drunken state, she broke windows to get in. Jaggard was prosecuted for criminal damage. But the court ruled that under section 5(3) of the Criminal Damage Act it was required to consider the accused’s actual belief when she committed the act. As she believed, even in her intoxicated state, that the accused would have consented to the damage, she was found not guilty.
R v Malcherek, R v Steel

March 18, 1981
This landmark decision on life and death concerned two cases considered together by the Court of Appeal. In both cases, the accused had inflicted serious injury on his victim for which hospital treatment was necessary. In each, the treatment involved the use of a life support machine. In each, the doctors, having satisfied themselves that the patient was, for practical purposes, dead and were only being kept alive mechanically, disconnected the life support machines. The defendants, convicted of murder, claimed that the hospital had caused the death by turning off the machines. But their appeals were dismissed. It was held that the medical treatment did not break the chain of causation.
Laskey, Jaggard and Brown v United Kingdom

February 20, 1997

This is a famous modern case in which the personal freedom of individuals with unusual tastes was set against society’s right to rule certain conduct as criminal. It addresses a debate at the core of law: when can something be condemned as illegal where the conduct is private and involves only consenting adults? It went all the way to the European Court of Human Rights. The applicants were a group of gay men who participated in sadomasochistic activities including beating and branding. Their activities involved causing injury to the genitals and other places using fish hooks, spiked gloves and wires heated with blow torches. All were of full age and consenting. No permanent injuries were caused. Nevertheless, they were prosecuted for causing bodily harm and wounding under the Offences Against the Person Act 1861. At their trial, the defence of mutual consent was rejected and they consequently pleaded guilty. On appeal, their convictions were upheld but the sentences were reduced to between three months and three years. A further appeal to the House of Lords was dismissed. They then appealed to the European Court of Human Rights claiming that their convictions were a violation of their human rights to a private life. The court said the issue was whether the interference with their rights was “necessary in a democratic society”. It ultimately ruled that the interference had been necessary and that the state was entitled to regulate the infliction of physical harm through the criminal law. It was up to the authorities to determine the “tolerable level of harm”.
Attorney-General’s Ref No. 3 of 1994 (1997)

July 25, 1997
This case decided the law in a situation where a man stabs a pregnant woman and inflicts a wound that eventually kills the baby she is carrying. It rules on the important issue of which forms of life are protected by the criminal law. On May 26, 1990, a man stabbed his girlfriend in the face, abdomen and back. At the time she was, to his knowledge, 22 to 24 weeks pregnant with his child. Seventeen days later the child was born — it survived for 120 days before dying from the effects of premature birth. The mother recovered and the assailant was convicted of wounding with intent to cause grievous bodily harm and sentenced to four years imprisonment. Although the man was charged with murder after the death of the child, the judge ruled that neither murder nor manslaughter was proved on the available evidence and directed the jury to acquit on the murder charge. The Attorney-General referred the matter to the Court of Appeal on points of law including whether the crimes of murder or manslaughter can be committed where unlawful injury is deliberately inflicted to a child in utero (in the womb). The House of Lords decided that it was enough to raise a prima facie case of murder if the defendant committed the act that caused the death of the victim (the foetus) or caused grievous bodily harm. So an assailant such as the one who escaped a homicide conviction in this case could now be convicted.
Gregory v Portsmouth City Council

February 2, 2000
The civil action for malicious prosecution is a useful defence for a citizen against oppressive behaviour by a prosecutor. It is available where a prosecution has been brought maliciously, without reasonable and probable cause and has been unsuccessful. It helps balance the relationship between the individual and the state. This case made an important decision about the limits of that civil action. Terence Gregory, a councillor, had allegedly misused his position for financial gain and had been subject to disciplinary proceedings by a city council. Those proceedings, however, were quashed by the Divisional Court following a judicial review. The councillor then sued the council for having ‘maliciously prosecuted’ him by taking disciplinary proceedings against him. But the House of Lords decided that an action for malicious prosecution will not be open to someone who has been merely the subject of disciplinary proceedings.
Chief Adjudication Officer v Faulds

May 16, 2000
This case concerned the important issue of when incidents can be properly described as accidents. It is a fine illustration of how what might seem like remote philosophical semantics are an important and unavoidable part of law and have a striking impact on real life. Thomas Faulds, a senior fire officer, was claiming industrial injury benefit as a consequence of post-traumatic stress disorder. Faulds, who had served for 27 years, argued that he was entitled to benefit within the provisions of section 94(1) of the Social Security Contributions and Benefits Act 1992, as he had suffered personal injury (stress) “by accident arising out of and in the course of his employment”. He had attended many appalling fatal accidents and had been required to photograph mutilated bodies. But the law lords rejected Faulds’ claim that he had suffered from an “accident” in the way meant by the legislation. He wasn’t present when accidents actually occurred and it was not, at least directly, the actual happening of a crash or a fire or a vehicle collision that caused him any injury. The mere fact of suffering stress or developing some illness or disorder from being engaged in a stressful occupation wouldn’t bring the sufferer within the purview of the Act for the purposes of injury benefit.
Regina (Quintavalle) v British Broadcasting Corporation

May 16, 2003

This landmark House of Lords decision dealt with the issue of when broadcasters can decline to show something they regard as unfit for the public. ProLife, a political party, was campaigning against abortion. It had fielded enough candidates in a general election to entitle it to one party election broadcast in Wales and submitted a tape of its proposed broadcast to various channels. The major part of the programme had been devoted to explaining the processes involved in different forms of abortion, with prolonged and graphic images. The pictures were judged to be very disturbing. The BBC did not broadcast the film. The party took legal action in an effort to have that decision declared improper. But the House of Lords decided that the BBC and other terrestrial broadcasters had been entitled to refuse to show it on the ground that it would be offensive to public feeling. Lord Nicholls said that television broadcasters had to ensure, so far as they could, that their programmes contained nothing likely to be offensive to viewers. That was a statutory obligation placed on the independent broadcasters by the Broadcasting Act 1990 and on the BBC by an agreement with the Secretary of State for National Heritage. It wasn’t for the courts to find that the broadcasters had acted unlawfully when they had done no more than give effect to the statutory and other obligations binding on them.
Regina (Williamson and Others) v Secretary of State for Education and Employment

February 25, 2005
This case hinged on the contentious issue of whether the law against corporal punishment in schools broke the alleged human right of some parents to delegate to teachers the power to hit children. The claimants were religious educationalists. They applied for judicial review against the Secretary of State for Education and Employment, asking for a declaration that the Education Act 1996 did not prevent a parent delegating to a teacher in an independent school the right to administer physical punishment. They wanted it stated that a teacher who gave physical punishment on the basis of an expressed delegation by a parent in writing did not act unlawfully or unprofessionally. The House of Lords disagreed with that interpretation. The law lords ruled that the statutory ban on corporal punishment was not incompatible with the human right to freedom of religion and the freedom of some people to manifest their religion in practice by caning children. Although the statutory ban on corporal punishment was capable of interfering with the rights of those who sincerely believed that they had a religious duty to discipline children by the use of mild corporal punishment, Parliament was entitled to take the view that the ban was necessary in a democratic society to protect children from the infliction of physical punishment in an institutional setting.
Regina (Laporte) v Chief Constable of Gloucestershire Constabulary

December 14, 2006

The circumstances in which the police are permitted to stop citizens and turn them away from where they want to go is an issue of crucial consequence in any society. Too little power and there might be disorder; too much power and you would have an oppressive police state. This case had to address that issue in the context of that key characteristic of democracy — the right to protest. Relying on their duty to prevent a breach of the peace, police intercepted coach passengers travelling from London to a protest demonstration in Gloucestershire and prevented them from continuing to the demonstration. Police had turned back three coaches of anti-war protesters, including Jane Laporte, from a journey to a protest against impending bombing raids on Iraq. The Lords decided that police acted unlawfully. Stopping them proceeding was unlawful because no such breach of the peace was about to occur. The Lords ruled, citing European jurisprudence, that freedom of expression and assembly are “an essential foundation of democratic society”, and that there was insufficient reason here for those rights to be curtailed.
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July 4, 2008
DR. ZULKIFLI HASAN
The cases that changed Britain: 1955-1971 (Part IV)
From Times By Gary Slapper
Entores Ltd v Miles Far East Corporation

May 18, 1955
Another key case in which the law adapted to a social change: this time the advent of the telex (electric typewriters connected via cable systems). The decision had a huge impact on business. Under general principles in the law of contract, if there is to be an enforceable agreement, acceptance of an offer must be communicated to the person who has made the offer. Here, the court was concerned with the technicality of precisely where a deal for 100 tons of Japanese cathodes had been completed. The court had to consider at what point an acceptance made by telex (a precursor of the fax machine) in Amsterdam was “communicated” to the person receiving the message in London. Was it communicated when it was typed by the sender or when it was printed at the other end? The Court of Appeal decided the deal was made in London when the telex message was printed in that office.
Bolam v Friern Hospital Management Committee

February 27, 1957

In cases of alleged medical negligence there are commonly various schools of medical thought about how something should be done. This case gave guidance about how far a treatment must be accepted among doctors in order for it not to be seen as negligent if it goes wrong. An action for damages was brought by a psychiatric patient, John Bolam, for a fracture sustained during electro-convulsive therapy. Although he had signed a consent form, Bolam hadn’t been warned of the risk of fracture, which was one in 10,000. Nor had he been given relaxant drugs, which would have excluded the risk of fracture. However, the lawsuit failed. The court ruled that in order to prove negligence a doctor had to fall below a standard of practice recognised as proper by every responsible body of opinion. At the time it was not common practice to warn patients about the dangers of the treatment and many doctors were opposed to the use of relaxant drugs.
Sayers v Harlow Urban District Council

May 08, 1958
An amusing drama, this case also carried an important point about the law relating to accidents. Something of the mood of the case is heralded by the fact that The Times law report was headed “Lady Locked in Lavatory”. Eileen Sayers and her husband were on a coach trip to London from Essex. At one point on the journey, Mrs Sayers went to the lavatory but became locked in the cubicle. She injured herself when she fell trying to climb out using the toilet roll holder as a foothold. Although Mrs Sayers was successful in her claim for damages, the court found that she was guilty of some contributory negligence in the way she endeavoured to escape. She bore 25 per cent of the blame, and so the damages were reduced by that amount.
R v Smith

March 26, 1959
This gruesome case decided an essential principle of cause and effect in the law of murder. Is the chain of causation broken if a victim of violence is injured by someone else before he dies? Private Thomas Joseph Smith was convicted of murdering a fellow soldier whom he had stabbed with a bayonet during a barrack room fight. The victim received a peirced lung that caused a haemorrhage. He was taken to hospital. On the way, he was dropped twice. When he got to the hospital, the graveness of his condition was missed because the medical staff were so busy with other patients. Had the victim been given a blood transfusion his chances of recovery would have been as high as 75 per cent, but he received “thoroughly bad” treatment, including inappropriate artificial respiration, and died. Private Smith’s appeal concerned the “causation” of the death. He argued that while he had caused the victim’s wound he could not be held responsible for his death because the chain of unfortunate events after the injury had really killed him. But the court held that Private Smith had been rightly convicted. If at the time of the death, the original wound is still “an operating and substantial cause”, then the death can be said to be the result of the wound, even though some other cause of death is also operating. Only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound.
Chappell & Co and others v Nestlé and others

June 19, 1959
In the 1950s, giving away discounted goods in exchange for chocolate or candy wrappers was a popular marketing scheme. The law had to decide how this should work if royalties were payable on the discounted item. Should the copyright owners get a percentage of just the discounted price paid by the customers, or should the royalty be based on the price of the item plus the value of the wrappers they handed in? In this case, Nestle, in a promotion for its chocolate bars, gave away a pop single, “Rockin’ Shoes”, in exchange for three wrappers and 1s 6d (about 8p) for postage. According to the law, Chappell, the publisher of the song, was entitled to 6.25 per cent of the “selling price” of each record. It sued Nestle. Chappell won the case as the House of Lords decided that the “selling price” on which their royalty should be based wasn’t just the 1s 6d but also included the value represented by the three wrapping papers. It didn’t matter that the actual papers themselves were of no intrinsic value (Nestle threw them away when they got them back from customers) as they were the value asked for by Nestle.
R v Penguin Books Ltd

October 21, November 3, 1960

This is a classic case on law, art and freedom of expression. On October 20, 1960, a jury of nine men and three women were handed unexpurgated copies of D H Lawrence’s Lady Chatterley’s Lover and instructed to read it. Its publishers, Penguin Books Ltd, were being prosecuted under the Obscene Publications Act, which allowed for literary and artistic merit to be considered in judging whether a work was obscene. The prosecutor, Mervyn Griffith-Jones, argued that the book had no substantial literary merit and merely advocated “coarseness and vulgarity”. He set the jury the following test: “Is it a book you would even wish your wife or servants to read?” But Penguin’s lawyer, Gerald Gardiner, QC, defended the use of four-letter words by arguing that if such language was depraved and corrupt then “95 per cent of the Army, Navy, and Air Force are past redemption”. The defence also called the novelist EM Forster, who said he knew Lawrence well and regarded him as the greatest writer of his generation; Cecil Day-Lewis also testified on his behalf. Penguin was acquitted and Lady Chatterley’s Lover went on to sell three million copies in a year.
Fisher v Bell

November 11, 1960
This was a classic decision determining a highly consequential point of retail law. The Restriction of Offensive Weapons Act 1959 made it an offence to offer for sale certain offensive weapons, including “flick-knives”. James Bell, a Bristol shop keeper, displayed a weapon of this type, an “ejector knife” selling for 4s, in his shop window. The Divisional Court held that he could not be convicted because, giving the words in the Act their tight, literal legal meaning, Bell had not “offered” the knives for sale. Under the law of contract, placing something in a shop window is not, technically, an “offer for sale”; it is merely an “invitation to treat”. It is the customer who legally makes an “offer” to the shop when he proffers money for an item on sale. This decision has significance in other scenarios. What if a £2,000 multimedia system was mispriced in the shop window at £200? The decision in Fisher v Bell means that you can’t seal a contract by walking into the store and saying, “I accept”. The shop has the final say about whether it wants to make a contract with you and on the terms you offer.
Overseas Tankship (UK) Ltd V Morts Dock and Engineering Co Ltd

January 19, 1961

This landmark case decides the test for working out whether a defendant who starts a series of unusual events is liable to pay compensation for the damage they cause. The ruling was by the Privy Council on an appeal from Australia but it also changed English law, as it was later followed by English courts. Through carelessness, furnace oil from a ship in Sydney harbour was spilt into a bay. The oil spread over the water to a wharf 600 feet away where wharf owners were carrying out repairs to a ship, including welding metal. Molten metal from the wharf dripped down on to floating cotton waste which ignited the furnace oil on the water. The wharf was badly burnt in the resulting fire. The wharf owners sued for damages but the court found that the ship owners could not reasonably have known that the furnace oil was capable of being set alight when spread on water. It was held that the test of liability for the damage done by fire was whether it was “reasonably foreseeable” in the circumstances.
Ridge v Baldwin

March 15, 1963
This case cemented into English law a key principle of natural justice: that a court or tribunal cannot come to a fair decision unless both sides have been heard or have been given the chance to be heard. It was held by the House of Lords that the former Chief Constable of Brighton, Charles Ridge, had been unfairly dismissed in breach of the principles of natural justice. He had brought a legal action against George Baldwin of the Brighton police committee, in which he asked for a declaration that their termination of his appointment as chief constable was illegal and beyond the powers of the authority. At the core of his allegation was that at the appropriate time, no specific charge was notified to him and he was not given an opportunity of being heard. His solicitor was given an opportunity at one stage to address a committee but had been given no particulars of the case against him. Lord Reid recognised the cherished principle of the law audi alteram partem, which means a judge in a dispute should allow both parties to be heard and should listen to the point of view of each, or at least given an opportunity of each to speak.
Hedley Byrne & Co v Heller & Partners Ltd

May 29, 1963
This House of Lords case took the duty of care into the realm of advice. The law had previously applied only to manufacturers, but this ruling affected everyone from architects to zoo consultants. It now applied to anyone who gave advice in the course of their job. It began when a bank phoned a merchant bank to check on the financial position of a potential client, Easipower Ltd, which wanted to borrow money to fund advertising. The bank promised the merchant bank would be “without responsibility” in providing the information. After Easipower went into liquidation, out of pocket advertising agents sued the merchant bank to recover their losses, but lost. They would have won were it not for the “without responsibility” disclaimer.
Eastham v Newcastle United Football Club Ltd

June 12, July 5, 1963
A court blew the whistle on Newcastle FC and declared a foul. This case affected the way football contracts worked across the land. The claimant, George Eastham, became a professional football player in 1956 when he was 19. He then transferred to Newcastle United, entering into an annual contract. A while later, he asked for a transfer but the club notified him that his services would be retained for the next season at his current wage. The club cited regulation 26 of the Football Association rules. This blocked him from getting a transfer and meant he could not play for another club in the UK or Ireland provided Newcastle offered him a “reasonable wage”. But the court decided that this was an “unlawful restraint of trade”.
D & C Builders Ltd V Rees

November 13, 1965

This decision was influential in clarifying the law whereby traders are bullied by customers into accepting a smaller payment. The claimant company consisted of two jobbing tradesmen, one a decorator and the other a plumber. They carried out work for Rees, the defendant, worth £482 13s 1d. For months, the builders pressed for payment. Finally, the defendant’s wife, who knew that the company was in financial difficulties, offered £300 to settle the debt, saying that if that offer wasn’t accepted nothing more would be paid. They accepted the £300 but later sued for the balance of £182 13s 1d. The court held that the company was not barred from recovering the balance by the agreement to accept a smaller sum because there was “no true accord”. The defendant’s wife had put pressure on the company to accept the £300 in settlement by threatening that if they did not accept nothing would be paid.
R v Jordan

May 13, 1967
Under the British constitution there is nothing more sacred or potent than a properly passed Act of Parliament. It is the most powerful legal instrument and can’t be declared invalid by reference to any political principle. This case is a classic example of what that means in practice. Colin Jordan was sentenced to 18 months imprisonment for offences under the Race Relations Act 1965. He asked for legal aid to apply for a writ of habeas corpus (a process by which the authorities have to justify an imprisonment) on the grounds that the Act was invalid as it was a curtailment of free speech. It was held, dismissing his application, that Parliament was supreme and there was no power in the courts to question the validity of an Act passed by it.
R v Lamb

June 24, 1967

A dreadful human drama. In this case, the appeal court formulated an important rule about what does and doesn’t amount to an unlawful assault. The appropriate state of mental blameworthiness must exist at the time of the defendant’s conduct. Terence Lamb pointed a revolver in fun at a friend. He knew that there were two bullets in the revolver and also that neither of them was in the chamber opposite the barrel. But he didn’t realise that when the gun was fired the cylinder would automatically rotate. He shot his friend dead. The judge directed the jury that they could convict of manslaughter if the accused had been grossly negligent or if the killing had occurred in the course of an unlawful act. He told them that the pointing and firing of the revolver amounted to an unlawful act even if the accused had not intended to alarm or injure. On appeal, it was held that the pointing and firing was only the actus reus (the physical conduct) of assault but there was no criminal assault without the mens rea (a blameworthy mind). Although the accused might have been criminally negligent, the trial judge hadn’t properly explained to the jury what was required for there to be an criminal assault. His direction to them on an unlawful act had been wrong and so the conviction was quashed.
Barnett v Chelsea and Kensington Hospital Management Committee

November 9, 1967
This is a leading case on cause and effect in the law of tort. It shows a how medical negligence might not be the legal cause of someone’s injury or death if even good medical treatment would not have saved a patient. William Barnett was employed as a night watchman at the hall of residence at the Chelsea College of Sciences and Technology in London. On December 31, 1965, following celebrations with some friends at the hall, he went to hospital with symptoms that included continuous vomiting and cramp. The nurse telephoned a doctor. The doctor, who was himself unwell, instructed Barnett to go home and call his own doctor. He went away and died some hours later from what was later found to be arsenic poisoning. The court decided that although the doctor had been negligent in not seeing the man, the poisoning of Barnett was at that time so far advanced that even if the doctor had seen him he would have died. The hospital was found not liable — the death did not result from its negligence.
Fagan v Metropolitan Police Commissioner

August 1, 1968
A serious case (and one that decides an important point of law), but one posited on an extraordinary and comical set of facts. The court decided that although an omission to act cannot amount to an assault, the crime of assault will be committed if someone accidentally commits a battery which he then refuses to discontinue. Vincent Fagan drove his car on to the foot of PC David Morris in north London. It was most likely an accident, but when the PC said, “Get off, you are on my foot”, Fagan replied: “F–k you, you can wait”. Although Fagan soon relented and it had initially been an accident, his conviction for assault was upheld using what has become known as the “doctrine of the continuing act”.
Conway v Rimmer

May 4, 1970
This is a case of major importance in constitutional law. At its heart it is about the judicial control of public authorities. A police officer, Michal Conway, had been prosecuted for theft of a torch. He was acquitted but sacked nonetheless. He began a civil action for malicious prosecution against his former superintendent in the Cheshire constabulary, Thomas Rimmer. Conway wanted certain documents to prove his case, including reports about him relating to the prosecution. The Home Secretary objected to Conway getting the documents, saying that release of them would be “injurious to the public interest”. The House of Lords looked at the documents and disagreed. It said that where there was a clash between the public interest in withholding a document and the interests of justice in it being seen, the court could ask for documents, examine them itself and order their release if necessary. The police officer, however, eventually lost.
Home Office v the Dorset Yacht Company

May 7, 1970

In what circumstances Government departments owe a duty to members of the public is a point of momentous importance, and this case helped define the nature of that duty. The Dorset Yacht Company claimed that seven youths has escaped on the night of September 21, 1968 from the borstal institute on Brownsea Island and then boarded the yacht Silver Mist, cast her adrift and caused considerable damage to her and her contents. The company alleged that the Home Office was liable for the damage because of its negligence in failing to exercise effective control and supervision over the youths. The House of Lords held that public policy doesn’t require that the Home Office is immune from legal actions in such cases. It did owe a duty of care. But to establish liability, it had to be proved that the Borstal officers were negligent in performing their duties to control and supervise the teenagers and that the particular damage that did occur was the sort of thing likely to result from such negligence. The case was later settled out of court by the Home Office.
Blackburn v The Attorney General

March 15, 1971
Amid great political controversy this case confirmed that there was no constitutional reason why the UK could not join the Common Market (now the European Union). Raymond Blackburn of Chiswick, in London, asked the judges as “the guardians of the British constitution” to explain the constitutional position in relation to the Government’s application in 1971 to join the Common Market. He said that the Treaty’s provisions could be validly accepted only if a new constitution was adopted with the consent of the British people. The Court of Appeal disagreed, saying that Parliament was competent to hand over some parts of its sovereignty if it wished, although this would not necessarily be binding on future parliaments.
R v Hudson and Taylor

March 19th, 1971

In some circumstances, someone who commits a crime may have a defence if it was committed under duress. Linda Hudson and Elaine Taylor were two girls from Salford who, as witnesses at a criminal trial in Manchester, gave false evidence. Their defence on charges of perjury was that they had previously been threatened by violent men that they would be “cut up” if they told the truth. One of the men had been sitting in court when they gave their evidence. At their trial the judge directed the jury that this was no defence and they were convicted of perjury. Quashing the convictions, the Court of Appeal held that duress was a defence to all offences (except murder as principal offender, and possibly treason) if the will of the accused had been overborne by threats of death or personal injury. To be a defence, the threat had to have been “present”, which meant “effective at the moment the crime was committed”. In this case, the threats of future violence were likely to have been present. They were no less compelling just because they couldn’t be carried out in the court room itself: they could have been carried out in the streets later that evening.
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BLOG OF KNOWLEDGE (Shari'ah, Law, Islamic Finance and Muslim News)
Shari'ah, Law, Islamic Finance and Muslim News
March 26, 2012
DR. ZULKIFLI HASAN
What Can We Learn From Islamic Finance?
What Can We Learn From Islamic Finance?
Otaviano Canuto Vice President, Poverty Reduction, World Bank

Available at:
http://www.huffingtonpost.com/otaviano-canuto/what-can-we-learn-from-is_b_1373040.html
In over 70 countries, from financial centers in Malaysia to the Middle East, Islamic finance has been growing rapidly around the world. In fact, Shariah-compliant financial assets have increased from about US$5 billion in the late 1980s to about US$1 trillion in 2010. Even more impressive is that this class of financial instruments appears to have avoided many of the worst effects of the recent crisis, making it an increasingly attractive investment vehicle.
Given its rapid growth and relative stability, are there lessons we can garner from Islamic finance? Three years after the onset of the global financial crisis as regulators are still grappling with how to deal with predatory lending practices, opaque derivatives, and overly leveraged financial institutions can Shariah-compliant finance challenge our notion of conventional banking?
Perhaps it can. By and large, Islamic finance relies on the core principles of Islam concerning property rights, social and economic justice, wealth distribution, and governance. Two of its main tenants are the prohibition of interest on debt in any form and the removal of ambiguous contracts to enhance disclosure and proscribe deception. Among its other key precepts is a commitment to back all financial contracts by assets and activities in the real economy, as well as an emphasis on the principles of morality and ethics in conducting business.
According to the most recent Economic Premise, authored by World Bank Managing Director Mahmoud Mohieldin, these underpinnings have generally helped Islamic banks escape some of the worst effects of the 2008 financial crisis. To be sure, Mohieldin notes that “The recent financial crisis affected the asset quality of conventional banks adversely. In contrast, as shown in recent research, Islamic banks had higher asset quality, were better capitalized, and more likely to continue their financial intermediation role during crises than their conventional counterparts.” As they were not exposed to subprime and toxic assets and had instead maintained a close connection to the real sector, only when the real economy contracted and real estate prices dropped did Islamic financial institutions begin to feel the second round effects of the crisis.
Yet as Islamic finance continues to grow, some challenges still need to be met. For example, the Economic Premise notes that many aspects of Islamic finance suffer from emulation and reengineering of conventional instruments, which result in inefficiencies and higher transaction costs. In addition, challenges associated with Basel III core capital requirements — which place Islamic financial institutions at a disadvantage need to be addressed. By dealing with these and other issues, Islamic finance could increasingly meet the preferences of local cultures, augment financial inclusion and intermediation, and contribute to financial stability and development in the years ahead.
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ZULKIFLI HASAN
Sultan Qaboos Mosque, Muscat, Oman
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BLOG OF KNOWLEDGE (Shari'ah, Law, Islamic Finance and Muslim News)
Shari'ah, Law, Islamic Finance and Muslim News
Daily Archives: August 5, 2009
August 5, 2009
DR. ZULKIFLI HASAN
World’s First Shari’ah-law Compliant Legal Firm
By Joshua Scott,Rashida Yosufzai Available at:
http://asia.legalbusinessonline.com/news/breaking-news/worlds-first-shariah-law-compliant-firm-launched/36240
United Arab Emirates-based law firm Agha & Shamshi is believed to be the first firm in compliance with Islamic law, a move which the firm’s founding partner, Oliver Agha, said is motivated by principle and philosophy. “The vision is to create a firm that lives true to the principles of Islamic finance, which means having an ethically based law firm that ensures it is practicing law. Also, not engaging in activities that are impermissible under the shariah,” Agha said in a radio interview with talk show FM station, Dubai Eye. But just how does a firm operate in compliance with shariah principles? Agha said that Agha & Shamshi abstains from investing the funds at its disposal in conventional instruments. More significantly, the firm turns away clients and legal work that does not comply with Islamic principles, like those in the casino or interest-lending businesses.
“We have had to turn work away,” Agha said. “We have had to say ‘no’ to conventional finance work. Large banks asked us to represent them on conventional transactions, which in my past life would have been fantastic. We have had to say ‘no’ to dispute resolution matters that entailed pursuing a debt with interest. So these are the sort of things that we have had to decline because we’re sticking to our principles.” Agha said that even with having to turn away work as a result of its shariah-compliance policy, there is still more than enough on offer. “We believe that in this region there ought to be enough business to allow a small firm like ours to get by,” he said. “Let’s not forget that a huge amount of law has nothing to do with interest-bearing debt. You have projects, construction and EPC contracts, energy projects, and project finance done through Islamic financing. There is a lot that we can keep busy with and we will be able to do that.”
Agha also made headlines late last year, after walking away from a top position as DLA Piper’s head of Islamic Finance. In January, he opened his own firm and formed an alliance with US firm Pillsbury, citing the “right cultural and strategic fit” between the two businesses. At the time, Agha had intended to develop his firm “based on ethical Islamic principles.” But this is not the only legal business to have signalled interest in structuring itself along shariah-law lines. In late July 2009, UK firm Norton Rose highlighted the importance of Islamic finance to its long-term Gulf strategy, and strongly implied that a similar model may be on the cards. “The spread of Islamic finance and principles in international business is set to continue,” said Middle East international managing partner and head of finance, Campbell Steedman. “An understanding of Islamic culture and the development of shariah-compliant products throughout all our practice areas will be an essential part of both our development and the development of the market, in the years ahead.”
Best Regards

ZULKIFLI HASAN
Kyoto, Japan
Islamic finance news
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BLOG OF KNOWLEDGE (Shari'ah, Law, Islamic Finance and Muslim News)
Shari'ah, Law, Islamic Finance and Muslim News
Daily Archives: November 28, 2011
November 28, 2011
DR. ZULKIFLI HASAN
Rang Undang-undang Perhimpunan Aman 2011: Transformasi atau Anti-tranformasi
Rang Undang-undang Perhimpunan Aman 2011:Transformasi atau Anti-tranformasi
Zulkifli Hasan
1.0	Pendahuluan
Komitmen kerajaan Barisan Nasional untuk memansuhkan tiga proklamasi darurat iaitu  Proklamasi Darurat 1966, Proklamasi Darurat 1969 dan Proklamasi Darurat 1977 amatlah dialu-alukan. Ini seharusnya membuktikan komitmen kerajaan terhadap transformasi politik yang mampu menarik kembali sokongan rakyat. Semua pihak sama ada individu, institusi, badan-badan bukan kerajaan termasuk parti pembangkang perlu meraikan dan memuji langkah kerajaan ini.
Sementara teruja dengan inisiatif kerajaan di atas, melalui pemerhatian, penulis berpandangan bahawa transformasi yang sedang cuba dilaksanakan tidak bersifat menyeluruh, kabur, tidak jelas dan tidak konsisten. Umpamanya, tatkala kerajaan telah mengumumkan ingin memansuhkan Akta Keselamatan Dalam Negeri 1960 pada 16 September yang lalu, 11 warganegara Malaysia di Sabah telah ditangkap di bawah undang-undang ini hanya selepas beberapa bulan pengumuman tersebut dibuat. Ini secara jelas menunjukkan bahawa kerajaan tidak konsisten dengan agenda transformasi yang ingin dilaksanakan. Perkara yang sama juga berlaku pada aspirasi kerajaan pada seksyen 15 Akta Universiti dan Kolej Universiti (AUKU) apabila kerajaan telah membuat keputusan untuk meneruskan rayuan ke atas keputusan Mahkamah Rayuan pada 31 Oktober lalu yang mengumumkan bahawa Seksyen 15 tersebut bercanggah dengan Perlembagaan Persekutuan.
Begitu juga dengan pengenalan undang-undang terbaru yang dibentangkan pada 22 November lalu iaitu Rang Undang-Undang Perhimpunan Aman di Dewan Rakyat. Walaupun Rang Undang-undang ini bermatlamat untuk membenarkan orang ramai berhimpun secara aman tetapi setelah diperhalusi isi kandungannya terdapat beberapa peruntukan yang memerlukan penilaian semula sebelum ianya boleh dilaksanakan ataupun diluluskan. Berdasarkan perkembangan yang meragukan ini, penulis ingin mengambil kesempatan untuk membuat analisa ringkas Rang Undang-undang Perhimpunan Aman 2011 ini dengan mengkhususkan perbincangan terhadap beberapa peruntukan yang menimbulkan banyak persoalan yang signifikan.
2.0	Rang Undang-undang Perhimpunan Aman 2011
Rang Undang-undang Perhimpunan Aman ini mengandungi 27 seksyen yang dibahagikan kepada enam Bahagian iaitu Bab I: Permulaan, Bab II: Hak Untuk Berhimpun Secara Aman, Bab III: Tanggungjawab Penganjur, Peserta dan Polis, Bab IV: Kehendak Dalam Menganjurkan Perhimpunan, Bab V: Penguatkuasaan dan Bab VI: Pelbagai. Secara umumnya, undang-undang ini kelihatan menyediakan peruntukan yang boleh diterima bagi memastikan setiap perhimpunan yang diadakan mengutamakan keamanan dan ketenteraman awam. Namun begitu, setelah diperhalusi terdapat beberapa peruntukan yang menimbulkan banyak persoalan dan membuka ruang yang amat besar kepada pihak tertentu untuk memanipulasikannya.
2.1	Tiada Wacana Awam
Di antara faktor kelemahan Rang Undang-undang ini ialah tiadanya wacana awam untuk membincangkan peruntukan yang terkandung dalamnya. Seharusnya kerajaan menganjurkan sesi perbincangan dengan masyarakat umum atau wakil badan-badan berkaitan sebelum meneruskan penggubalan undang-undang ini dan seterusnya dibacakan di Parlimen untuk kelulusan. Kegagalan untuk meninjau dan membuat kajian terhadap ruang lingkup dan pendekatan yang ada di dalam undang-undang ini sedikit sebanyak menjelaskan bahawa ianya tidak mendapat mandat yang sewajarnya dari masyarakat umum bahkan menidakkan pandangan dan pendapat mereka terhadap sesuatu undan-undang yang bakal dilaksanakan.
2.2	Terlalu Banyak Sekatan dan Syarat
Seksyen 9 memperuntukkan bahawa penganjur perhimpunan mesti membuat permohonan dalam tempoh 30 hari sebelum perhimpunan. Kegagalan berbuat demikian boleh mengakibatkan didenda tidak melebihi RM10,000. Kekurangrelevanan peruntukan ini kemudiannya dipersetujui YAB Perdana Menteri yang mana kemudiannya menyatakan tempoh 30 hari ini dikurangkan kepada 10 hari. Peruntukan ini perlu diperhalusi dan disemak semula. Ini memandangkan tempoh 30 atau 10 hari ini agak lama dan kadangkala tidak relevan. Bayangkan sekiranya isu yang ingin diketengahkan dalam perhimpunan tersebut merupakan respons yang perlu diberikan serta merta seperti isu keganasan Israel, maka seksyen ini bakal menimbulkan permasalahan. Ini memandangkan pihak berkuasa mempunyai kuasa penuh untuk menentukan sama ada perhimpunan boleh diadakan atau sebaliknya.
Walaupun peruntukan ini membolehkan pihak berkuasa untuk memberikan kebenaran berhimpun kurang dari 10 hari, ianya juga menimbulkan keraguan. Ini kerana pihak polis memerlukan masa untuk mengadakan rundingan dengan komuniti di kawasan tersebut. Ini juga tidak jelas dari aspek rundingan yang bagaimana, siapakah yang dirundingkan, adakah kesemua penduduk akan dilibatkan atau sebahagian dan berapa lamakah rundingan tersebut? Hal ini bukan sahaja boleh dipersoalkan bahkan menimbulkan keraguan dari aspek perlaksanaan. Malahan membuka ruang yang lebih luas untuk ianya dimanipulasikan oleh pihak tertentu.
Disamping itu, jika dirujuk kepada syarat-syarat dan prosedur untuk mengadakan perhimpunan, terlalu banyak perkara yang perlu dipatuhi bahkan melibatkan ramai pihak yang akan melambatkan proses permohonan dan seterusnya membantutkan sebarang usaha untuk berhimpun. Keperluan menampal notis, memaklumkan orang mempunyai kepentingan, perjumpaan dengan penganjur, rundingan dan sebagainya di antara perkara-perkara yang dimaksudkan.
2.3	Kuasa Budi Bicara Pihak Berkuasa
Rang Undang-undang ini memberikan kuasa budi bicara yang amat luas kepada pihak berkuasa. Ini membuka ruang yang besar dan sangat berpotensi untuk ianya dimanipulasikan. Sebagai contoh, seksyen 15 memberikan kuasa penuh kepada pihak berkuasa untuk mengenakan sekatan dan syarat ke atas sesuatu perhimpunan dan barangsiapa yang gagal untuk mematuhinya boleh dikenakan denda sehingga RM10,000. Sekiranya ini berlaku, mana-mana pihak yang ingin menganjurkan perhimpunan bukan sahaja boleh dinafikan hak mereka untuk berbuat demikian bahkan boleh dikenakan denda sekiranya gagal mematuhi syarat dan sekatan yang dikenakan.
Begitu juga dengan peruntukan yang lain di mana pendekatan yang terkandung dalam undang-undang ini memberikan kuasa yang luas kepada pihak polis sedangkan sepatut ianya menganjurkan model kerjasama pihak penganjur dan pihak berkuasa untuk berbincang dan memperoleh kata sepakat mengenai perkara-perkara yang berkaitan dengan perhimpunan. Ciri-ciri yang ada pada beberapa undang-undang terdahulu seperti Akta Keselamatan Dalam Negeri 1960 yang memberikan kuasa penuh pihak polis masih lagi ingin diperkenalkan. Ini sedikit sebanyak menunjukkan kegagalan untuk menterjemahkan aspirasi kerajaan bagi melaksanakan transformasi pada undang-undang yang ingin diperkenalkan. Seharusnya peruntukan undang-undang yang ada lebih memberikan penekanan dari aspek pendekatan yang lebih bersifat kerjasama untuk memastikan perhimpunan yang bakal diadakan berlaku dalam situasi yang aman damai. Perkara ini bersesuaian dengan hak kebebasan bersuara yang dijamin oleh Perlembagaan Persekutuan dan ini termasuk hak untuk berhimpun secara aman.
2.4	Rayuan kepada Kementerian Dalam Negeri
Rang Undang-undang ini bukan sahaja memberikan kuasa yang luas kepada pihak berkuasa bahkan ianya juga tidak mempunyai peruntukan yang jelas dan relevan mengenai rayuan terhadap sekatan dan syarat-syarat yang dikenakan oleh pihak polis. Sudahlah sekatan dan syarat ini budi bicara mutlak pihak polis, pihak penganjur juga hanya boleh merayu atau berunding untuk mengurangkan atau menggugurkannya kepada Kementerian Dalam Negeri. Ini menimbulkan persoalan daripada aspek ketelusan, kesesuaian dan kerelevanannya. Seperti yang difahami, pihak polis beroperasi dan menjalankan tugas di bawah pemantauan Kementerian Dalam Negeri (KDN) bahkan terikat dengan arahan KDN. Dalam konteks sudah tentu rayuan kepada KDN berkenaan dengan sekatan dan syarat dikenakan adalah tidak sesuai dan meragukan.
Memberikan hak untuk merayu terhadap sesuatu keputusan yang dibuat merupakan perkara yang perlu diberikan perhatian. Sewajarnya pihak penganjur diberikan peluang untuk merayu terhadap apa-apa sekatan dan syarat yang dikenakan untuk tujuan perhimpunan aman terhadap institusi yang lain yang lebih sesuai dan kredibel. Aspek ini membuktikan bahawa Rang Undang-undang ini mempunyai pelbagai kelemahan dari aspek teknikal dan juga substantifnya.
2.5	Kekaburan Undang-undang
Terdapat pelbagai kekaburan undang-undang yang terkandung dalam Rang Undang-undang Perhimpunan Aman ini. Umpamanya, tidak terdapat sebarang perbezaan yang jelas mengenai takrifan “perhimpunan” sama ada ianya merujuk kepada sebarang perarakan atau mana-mana protes jalanan atau piket atau demonstrasi. Rang Undang-undang ini juga tidak menjelaskan sama ada bukan warganegara Malaysia juga diberikan hak untuk berhimpun secara aman.
Peruntukan seksyen 19 juga adalah tidak jelas di mana merujuk penganjur sebagai seseorang yang menggalakkan, menaja, mengadakan atau menyelia perhimpunan, atau menjemput atau merekrut peserta atau penceramah bagi perhimpunan. Ini bermakna penganjur perhimpunan merangkumi definisi yang amat luas dan ini termasuk sesiapa sahaja yang terlibat. Terminologi ’merekrut’ juga tidak mempunyai sebarang pendefinisian yang jelas menimbulkan lagi kekaburan dan kekeliruan.
2.6	Penggunaan Kekerasan Dibenarkan
Agak mengejutkan apabila merujuk kepada seksyen 21 yang membenarkan pihak polis menggunakan kekerasan untuk menyuraikan perhimpunan. Walaupun peruntukan ini merujuk kepada “kekerasan yang munasabah”, kebenaran untuk membolehkan pihak polis menggunakan kekerasan tanpa ada apa-apa definisi dan skop bakal membuka ruang yang luas untuk ianya digunakan sewenang-wenangnya. Bukan itu sahaja, denda yang dikenakan kepada mana-mana pihak yang gagal untuk mematuhi seksyen ini ialah denda tidak melebihi RM20,000.
Peruntukan seumpama seksyen 21 ini yang memberikan kuasa ekslusif kepada pihak polis untuk menggunakan kekerasan bagi menyuraikan perhimpunan dan denda yang tinggi kepada sesiapa yang gagal mematuhinya membuktikan bahawa terdapat ketidakadilan dan ketidakrelevanan sebahagian besar ruang lingkup dan pendekatan Rang Undang-undang Perhimpunan Aman 2011 ini. Aspek ini sewajarnya diberikan perhatian serius oleh pihak kerajaan selaras dengan hasrat transformasi yang ingin dilaksanakan.
2.7	Akses Munasabah Kepada Media
Di antara aspek yang juga boleh dipertikaikan ialah peruntukan mengenai akses kepada media. Seksyen 24 memperuntukkan bahawa mana-mana wakil media hanya boleh mempunyai akses yang munasabah kepada tempat perhimpunan dan menggunakan apa-apa kelengkapan untuk membuat laporan tentang perhimpunan itu. Apakah yang dimaksudkan dengan ‘akses munasabah’ ini? Pihak manakah yang menentukan kemunasabahan akses ini?. Apakah sekatan-sekatan yang boleh dikenakan kepada media untuk menentukan kemunasabahan akses tersebut?
Peruntukan ini secara umumnya boleh menyekat media untuk mendapatkan maklumat secara adil dan bebas terhadap perhimpunan yang diadakan dan seterusnya boleh menafikan kebebasan media serta menidakkan laporan sebenar yang berlaku. Walaupun kebebasan media tidak boleh diberikan secara mutlak, tetapi menidakkan kebenaran dan fakta yang tepat melalui peruntukan sedemikian rupa umpama menafikan hak rakyat atau masyarakat untuk mengetahui kebenaran dan apa yang sebenarnya berlaku. Media perlu diberikan akses yang sewajarnya dan masyarakatlah yang perlu berperanan untuk mengadili sebarang laporan yang tertera di media massa.
3.0	Kesimpulan
Hasrat kerajaan untuk melakukan transformasi yang menyeluruh dalam sistem pentadbiran termasuk perundangan adalah sesuatu yang sewajarnya diraikan. Keputusan untuk memansuhkan beberapa undang-undang yang tidak lagi sesuai dilaksanakan menunjukkan sedikit sebanyak komitmen kerajaan untuk merealisasikan transformasi ini. Namun begitu, setelah meneliti dan membuat pemerhatian terhadap beberapa keputusan dan tindakan kerajaan akhir-akhir ini, polisi dan pendekatan transformasi ini menimbulkan pelbagai keraguan.
Di antara keraguan yang dizahirkan merujuk kepada pengenalan Rang Undang-undang Perhimpunan Aman yang telah dibentangkan di Parlimen November lalu. Setelah diteliti, Rang Undang-undang ini mempunyai pelbagai kelemahan dan terdapat beberapa persoalan signifikan  yang perlu diberikan perhatian. Penulis telah menggariskan beberapa aspek penting yang menimbulkan seribu persoalan dan ini termasuk tiada wacana awam, pelbagai sekatan dan syarat, kuasa budi bicara pihak polis, kuasa Kementerian Dalam Negeri, Kekaburan undang-undang, penggunaan kekerasan dan akses munasabah kepada media. Senarai ini tidak berhenti setakat ini sahaja. Masih terdapat banyak lagi persoalan dan keraguan yang timbul mengenai undang-undang ini. Rang Undang-undang ini juga sebenarnya boleh menidakkan hak umum berhimpun dan menyatakan pendirian mereka terhadap sesuatu isu yang relevan dan signifikan. Oleh kerana ianya mempunyai lebih banyak kelemahan berbanding kelebihan dan kekaburan dari aspek ruang lingkup undang-undang serta memberikan kuasa budi bicara yang amat luas kepada pihak berkuasa, penulis cenderung untuk menolak Rang Undang-undang ini melainkan dianjurkan terlebih dahulu secara menyeluruh wacana awam untuk meneliti dan memperkemaskan lagi isi kandungan dan pendekatannya.
Regards

ZULKIFLI HASAN
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AUTHOR
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Calendar
November 2011

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T

W

T

F

S

S

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Centre for Islamic Area Studies at Kyoto University

Durham Islamic Finance Programme

Harvard University Islamic Finance Project

IIUM Institute of Islamic Banking and Finance

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