IIUM Law Journal最新文献

{"title":"THIS LAND OF OURS – PROTECTING OWNERSHIP, INTEREST AND DEALINGS IN LAND","authors":"Zuraidah Ali, Nor Asiah Mohamad, Sharifah Zubaidah Syed Abdul Kader","doi":"10.31436/iiumlj.v31i1.836","DOIUrl":"https://doi.org/10.31436/iiumlj.v31i1.836","url":null,"abstract":"This article highlights the contribution of Almarhum Tan Sri Harun M. Hashim in laws relating to land and trusts. The research methodology employed for this study is legal doctrinal, through analysing Tan Sri’s judicial decisions on land law and the law of trusts. This study reveals that Almarhum Tan Sri Harun M. Hashim had contributed to a vast spectrum of knowledge revolving around land and trusts which is in line with Islam, culture, and values. Tan Sri had addressed and contributed to the development of legal principles in land law including charge, caveat, prohibitory orders, as well as equity and trust principles. Careful consideration of the findings of the review discloses the personal attachment and devotion of the work of Almarhum Tan Sri Harun M. Hashim to the legal development in upholding justice universally as well as to the litigants. As such, the late Tan Sri did not confine his career only as a judge but was also actively involved in and served as a committee member in justice related organisations. The end of his career as a judge saw him continue as an academic, providing a wider platform for him to propagate justice in the preparation of future lawyers and judges.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2023-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48804964","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"THE ISLAMIC LEGAL SYSTEM IN MALAYSIA: CHALLENGES AND STRATEGIES","authors":"Haji Mohd, Hanifah Haydar Ali Tajuddin","doi":"10.31436/iiumlj.v31i1.835","DOIUrl":"https://doi.org/10.31436/iiumlj.v31i1.835","url":null,"abstract":"It is established that Islam has played a crucial role in the development of Tanah Melayu as evidenced by its progression from a small village to a bustling trade hub in the Nusantara, and ultimately to a fully-fledged nation. Being an all-encompassing religion, Islam came not only as a belief system; it has as well brought positive changes and order in the political, economic and social aspects of Tanah Melayu. In the legal aspect, though Islamic law was used to adjudicate civil and criminal matters at first, the coming of the colonists suppressed its usage and the Common Law was instead, enforced. However, approaching the independence of Tanah Melayu, efforts of the Muslim intellects and reformists have managed to secure the position of Islam in the Federal Constitution. Today, though Islamic law is ensured with exclusive jurisdiction and recognition, its institutions strive to stay pertinent. Coordinating the law at the federal level remains a challenge especially that involving the inheriten power of states over Islam and its law. By using the qualitative method of research methodology, the paper analyses primary and secondary data descriptively by looking into the legal history and development of Islamic law until today. It is found that although Islam and its law are sourced from the supreme law in the country, it has to constantly overcome its challenges to remain relevant and significant. Thus, the paper seeks to look into challenges in administering Islamic law and its institutions. It also suggests some practical strategies toward a standardised and exclusive Islamic legal system in Malaysia.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2023-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44583947","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A HISTORICAL EXPOSITION ON THE FUNDAMENTAL FEATURES OF THE FEDERAL CONSTITUTION AND ITS IMPORTANCE TO JUDICIAL INTERPRETATION: A STUDY ON ARTICLE 121(1A)","authors":"Shamrahayu Binti Ab Aziz, Badruzzaman Bin Ishak","doi":"10.31436/iiumlj.v30i2.714","DOIUrl":"https://doi.org/10.31436/iiumlj.v30i2.714","url":null,"abstract":"The Federal Constitution has lasted for more than half a century after its introduction. Recent developments have witnessed various constitutional issues, some of them were controversial in nature such as the latest interpretation of Article 121 (1A) by the judiciary.  Hence, an exposition on the heritage foundation of the Constitution is crucial in addressing these developments. The judiciary needs to understand the spirit of all constitutional provisions in order to achieve the correct interpretation of the intention of the legislator. Each country frames its constitution according to its own history and for the good of its own society. The objective of the article is to highlight certain customary elements which form the fundamental features of the Federal Constitution especially on the position of Islam as the religion of the Federation. The research methodology adopted in this article is a doctrinal analysis on the historical narrative that is meant to unearth certain aspects of the fundamental features of the Federal Constitution. The article also analyses the past and recent cases where the judiciary had come up with different interpretations of Article 121 (1A).","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-12-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47774553","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"CIVIL LIABILITY OF AUTONOMOUS VEHICLES: A REVIEW OF LITERATURE","authors":"Julia Farhana Rosemadi, Dennis W. K. Khong, G. Radhakrishna","doi":"10.31436/iiumlj.v30i2.740","DOIUrl":"https://doi.org/10.31436/iiumlj.v30i2.740","url":null,"abstract":"Autonomous vehicles are seen as a recent trend that has brought about changes in conventional driving. Although autonomous vehicles may bring a significant increase in safety, mobility, and productivity, it is not entirely fool proof and there can still be unfortunate incidents. In a normal car, the driver oversees the vehicle and may be liable both criminally and civilly if he fails to control his vehicle. However, in cases involving autonomous vehicles, the driver alone may not be in control of the vehicle; instead, the autonomous vehicle software navigates the car. This paper adopts a doctrinal methodology to conduct an issue-based literature review pertaining to civil liability issues for road accidents involving autonomous vehicles. The issues identified are: liability, the standard of liability, the safety regulation of autonomous vehicles, and insurance as the compensation mechanism for accidents. The review helps to organise the literature according to the themes and to derive lessons learnt from the literature.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":"1 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-12-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41357709","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"ADMINISTRATION OF ESTATES: RESOLUTION OF DISPUTES IN ACHIEVING SUSTAINABILITY AMONG THE DECEASED’S FAMILY","authors":"Muhammad Amrullah Drs Nasrul, Nurin Athirah Mohd Alam Shah, Nora Abdul Hak, Akmal Hidayah Halim","doi":"10.31436/iiumlj.v30i2.711","DOIUrl":"https://doi.org/10.31436/iiumlj.v30i2.711","url":null,"abstract":"The UN Sustainable Development Goals (SDG) provides for seventeen universal objectives in which three of which are related to the administration of estate namely no poverty, zero hunger and gender equality. Issues on sustainability in estate administration are commonly associated with problems that occur during the management of the deceased’s estate. Issues such as disputes among family members and mismanagement of asset by the personal representative or senior family members often lead to delays in the estate administration. Over the years, inefficiency in the administration of the estate process has led to financial instability such as poverty and in an extreme situation, hunger of the deceased’s family members as their entitlement over the asset was jeopardised by the mismanagement and unfair distribution of the estate. This paper addresses the sustainability issues in estate administration where the focus of the discussion is the issues of disputes among the family members. This paper also suggests a resolution of the dispute by way of mediation process, which is capable of maintaining sustainability in estate administration. Employing a qualitative approach, the paper adopts a research method through a library-based study by examining materials including statutory provisions, case laws, textbooks, journal articles, newspapers, conference proceedings and seminar papers. The research found that preserving a good relationship between the family members is one of the keys to ensure smoothness and consistency in estate administration, hence contributing to the sustainability of the deceased’s family members as well as adhering to the SDG.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-12-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48185963","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"SUB JUDICE AND GAG ORDER: THE RECENT DEVELOPMENT IN MALAYSIA","authors":"Shukriah Mohd Sheriff","doi":"10.31436/iiumlj.v30i2.753","DOIUrl":"https://doi.org/10.31436/iiumlj.v30i2.753","url":null,"abstract":"High profile court cases always attracted media attention for public interest purposes. As a liaison between the court and the public, the media broadcast or report the case on their media channels and newspapers. From these broadcast and reports, the public receives sufficient information for them to formulate a certain opinion. Those who believe that they understand more would advocate their stance openly, usually comments through social media or actual publishers. However, many are not aware of the existence of a sub judice rule that prevents anyone from publishing any statement about the ongoing trial. This sub judice rule is imposed to avoid disruption of court proceedings and to avoid \"trials by the media\". In such circumstances, the parties to the suit usually apply for a committal order for contempt of court for breaching the sub judice rule. Alternatively, they apply for a gag order to stop anyone from publishing about the case. However, the court will only grant or reject the application for the gag order after examining and considering certain factors as enunciated in the case of Dato’ Sri Mohd Najib bin Hj Abd Razak v Public Prosecutor which has been applied in the case of Public Prosecutor v Arumugam a/l Dorasamy. This paper adopts doctrinal legal research methodology with case analysis approach. It delves into the analysis of the court’s decisions on the standards and tests laid down and evaluates the impacts on future cases. At the end of the analysis, it is established that the case of Dato’ Sri Mohd Najib bin Hj Abd Razak v Public Prosecutor has become the benchmark and precedent for all future gag-order applications. The outcome of this analysis is important to chart the application of the sub judice rule and a gag order in Malaysia.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-12-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42240183","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"LEGAL CHALLENGES IN COMBATING CHILD TRAFFICKING IN MALAYSIA","authors":"Norehan Kamaruddin, Najibah Mohd Zin","doi":"10.31436/iiumlj.v30i2.756","DOIUrl":"https://doi.org/10.31436/iiumlj.v30i2.756","url":null,"abstract":"Malaysia has enacted the Anti-Trafficking in Persons and Anti-Smuggling of Migrants 2007 (ATIPSOM) Act in regulating the crime of human trafficking in Malaysia. The Act has to be read together with other relevant legislations, for instance, the Child Act 2001, Immigration Act 1956/63, and Child and Young Person (Employment) Act 1966 (Amendment) 2019. Additionally, since Malaysia is a signatory of the international instrument related to human trafficking, the implementation of the laws is required to observe the international standard.  Such as, international instruments include the Protocol to Prevent, Suppress, and Punish Trafficking in Persons especially Women and Children, the Convention on the Rights of the Child, the Optional Protocol for the Sale of Children, Child Pornography, and Child Prostitution. This paper aims to analyse the challenges in implementing the existing laws to combat child trafficking in Malaysia. Therefore, this study adopted a qualitative approach that applies the doctrinal and non-doctrinal components by utilising library-based resources and conducting semi-structured interviews with relevant agencies. The findings indicate that there are loopholes in enforcing several domestic laws to comply with the international standards and necessitates improvements in terms of criminalizing child trafficking cases, demand and supply of a child for sexual exploitation, child adoption process, and the status of refugee children.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-12-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47786188","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"REGULATIONS AND POLICIES FOR SCREENING OF FOREIGN INVESTMENT PROPOSALS IN MALAYSIA","authors":"Mohammad Belayet Hossain","doi":"10.31436/iiumlj.v30i2.732","DOIUrl":"https://doi.org/10.31436/iiumlj.v30i2.732","url":null,"abstract":"Foreign investors most commonly have the intention to maximise their profit against capital investment and in doing so, they prefer the least-developed and developing countries for investments due to the weak legal frameworks. They can easily bypass their responsibility towards the host countries including corporate social responsibility. In this context, it is very important for the host state to properly screen any foreign investment proposal before allowing it. Malaysia has a central government body which is responsible for screening foreign investment proposals. This study scrutinises the existing regulations or policies of screening to find out whether there are any loopholes or in need of amendments. This paper addresses one major question: is the existing legal framework compatible to ensure proper screening of foreign investment proposals? This study applies the doctrinal legal research method and semi-structured interviews. Four respondents were interviewed with expertise in FDI laws and regulations in Malaysia. Findings show that there is a need for improvements in the existing regulatory mechanisms for the screening of foreign investment proposals and recommendations are provided accordingly.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-12-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42559786","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"THE LANGUAGE OF JUSTICE IN MALAYSIAN COURTS: THE LAW AND THE REALITY","authors":"Sheila Ramalingam, Johan Shamsuddin Sabaruddin, Saroja Dhanapal","doi":"10.31436/iiumlj.v30i2.758","DOIUrl":"https://doi.org/10.31436/iiumlj.v30i2.758","url":null,"abstract":"Perhaps one of the most unique and peculiar aspects of Malaysia’s judicial and legal system is the setting up of two High Courts of co-ordinate jurisdiction and status when Malaysia was formed: one in West Malaysia, which is known as the High Court in Malaya; and one in East Malaysia, which is known as the High Court in Sabah and Sarawak. The two High Courts in Malaysia have remained in place until now. Simultaneously with the formation of Malaysia, Part XIIA was inserted into the Federal Constitution to provide for additional protection for the States of Sabah and Sarawak. These included, among others, Article 161 which provided for the continued use of English in court proceedings in East Malaysia. This is different from Article 152 of the Federal Constitution read together with the National Language Acts 1963/67 which provide that Malay is the official language in court proceedings in West Malaysia. Hence, a lasting anomaly in the Malaysian legal system: to all intents and purposes, Malay is the language of the courts in West Malaysia; whereas English is the language of the courts in East Malaysia. This has led to various legal issues in Malaysian jurisprudence. This article seeks to analyse the differences in the use of language in the courts in West and East Malaysia, with a view to answering the question as to whether there can be uniformity of the use of language throughout the courts in Malaysia, bearing in mind the special interests, protection and safeguards afforded to Sabah and Sarawak when Malaysia was formed. For the purpose of this research, a qualitative research method is adopted. The data collection method is document analysis consisting of both primary and secondary sources such as the Federal Constitution, Federal Acts of Parliament, textbooks, journal articles, published law reports, online articles, media reports, and case law. The research found that it is entirely possible for Malay to be made the official language in all courts across Malaysia. However, the liberal use of English in courts should continue to be allowed, as this is the reality that is taking place in courts across Malaysia today.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-12-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45257164","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"PUBLIC PARTICIPATION MODEL IN THE PREPARATION OF SHARIA-BASED ACEH QANUN: SPECIAL FOCUS ON THE ROLE OF THE ULAMA","authors":"Husni Jalil, Teuku Ahmad Yani, Andri Kurniawan","doi":"10.31436/iiumlj.v30i2.672","DOIUrl":"https://doi.org/10.31436/iiumlj.v30i2.672","url":null,"abstract":"Public participation in preparing legal products in Indonesia is essential for national and regional legislation. Although Indonesia is considered to have “achieved” democracy, many legislations do not agree with the people’s aspirations. This situation eventually led to a judicial review at the Supreme Court. It is expected that legal products in the form of sharia-based Aceh Qanun (regional regulation) can generate legal certainty and justice for society. This research was conducted in Aceh using a legal method based on a prescriptive approach. Results show that public participation in the preparation of sharia-based Qanun is more focused on issues that can give rise to differences of opinions amongst people from multi-religious backgrounds. The views are related to the norms in the bill in terms of fiqh (Islamic jurisprudence), local wisdom, and exploring problems and efforts to overcome them. The Majelis Permusyawaratan Ulama’s (Ulama Consultative Assembly/MPU) role in preparing Aceh Qanuns is limited to providing suggestions for the currently discussed bill. Unfortunately, the Aceh Qanun has not accommodated the rights of MPU to provide recommendations.  MPU’s  proposal for the Aceh Qanun bill  is in the form of suggestions because the ulama’s views do not bind the Aceh Governor and Parliament to enact the bill. The situation happens because the opinions are not in the form of a fatwa (legal pronouncement in Islam) but merely suggestions and recommendations.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-12-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44164073","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}