IIUM Law Journal 2019-01-17T11:08:28+00:00 Assoc. Prof. Dr. Majdah Zawawi Open Journal Systems <p>IIUM Law Journal is a double-blind peer-reviewed journal, published twice a year (June and December), with a dedicated mission of contributing to original and high quality research. The journal accepts scientific research papers on law reform, issues relating to the application of law in practice, comparative legal analysis and harmonisation of Islamic law and civil law.&nbsp;</p> <p><span lang="EN-US">The Journal considers three types of contributions:&nbsp;<em>articles</em>&nbsp;reporting findings of original research;&nbsp;<em>case notes</em>&nbsp;analyzing current and landmark decisions of domestic and international courts and tribunals; and&nbsp;<em>book reviews</em>&nbsp;commenting on recently published law books.&nbsp;</span></p> <h3>VOL 26, NO&nbsp;2 (2018): IIUM LAW JOURNAL is published.</h3> <div id="issueDescription">&nbsp;<strong>TABLE OF CONTENTS</strong></div> <h4 class="tocSectionTitle">ARTICLES&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;</h4> <table> <tbody> <tr> <td width="570"> <p><a href="" target="_blank" rel="noopener"><strong>SPECIAL FEATURE: ‘Scrutinising’ the Duties of a Lawyer to Advise the Purchaser in the Purchase of a Residential Property as Required by Sec 84 of the Legal Profession Act 1976 (Part I)</strong></a></p> <p><em>Baharuddeen Abu Bakar</em></p> <p><em>&nbsp;</em></p> </td> <td width="54"> <p>203</p> </td> </tr> <tr> <td width="570"> <p><a href="" target="_blank" rel="noopener"><strong><em>Fiqh Al-Jihād</em></strong><strong> in Modern Warfare: Analyzing Prospects and Challenges with Reference to International Humanitarian Law</strong></a></p> <p><em>Fajri Matahati Muhammadin, Thara Kunarti Wahab</em></p> <p><em>&nbsp;</em></p> </td> <td width="54"> <p>241</p> </td> </tr> <tr> <td width="570"> <p><a href="" target="_blank" rel="noopener"><strong>International Parental Child Abduction in the Malaysian Legal Context: Addressing Issues and the Way Forward</strong></a></p> <p><em>Abdul Ghafur Hamid, Zaleha Kamaruddin</em></p> <p><em>&nbsp;</em></p> </td> <td width="54"> <p>275</p> </td> </tr> <tr> <td width="570"> <p><a href="" target="_blank" rel="noopener"><strong>Prosecuting Piracy at the High Seas: The Experience of Malaysia</strong></a></p> <p><em>Muhammad Hameedullah Md Asri, Md Khalil Ruslan</em></p> <p><em>&nbsp;</em></p> </td> <td width="54"> <p>307</p> </td> </tr> <tr> <td width="570"> <p><a href="" target="_blank" rel="noopener"><strong>The South China Sea Arbitration: The Decision and its Implications on the Sovereignty Claims of China and the Philippines</strong></a></p> <p><em>Zhao Yan Lee</em></p> <p><em>&nbsp;</em></p> </td> <td width="54"> <p>335</p> </td> </tr> <tr> <td width="570"> <p><a href="" target="_blank" rel="noopener"><strong>Transplanting the United States’ Style of Safe Harbour via Multilateral Agreement: Can One Size Fit All?</strong></a></p> <p><em>Suzi Fadhilah bt. Ismail, Ida Madieha Abdul Ghani Azmi, Mahyuddin Daud</em></p> <p><em>&nbsp;</em></p> </td> <td width="54"> <p>369</p> </td> </tr> <tr> <td width="570"> <p><a href="" target="_blank" rel="noopener"><strong>Legal Education in Pakistan: An Overview</strong></a></p> <p><em>Sardar Ali Shah, Usharani Balasingam, Saroja Dhanapal</em></p> <p><em>&nbsp;</em></p> </td> <td width="54"> <p>401</p> </td> </tr> <tr> <td width="570"> <p><a href="" target="_blank" rel="noopener"><strong>Charitable Endowment (<em>Waqf</em>) for the Benefit of Parentless Children in Malaysia: A Preliminary Study</strong></a></p> <p><em>Azizah binti Mohd, Badruddin bin Hj Ibrahim, Mohammad Hidir bin Baharudin</em></p> <p><strong>&nbsp;</strong></p> </td> <td width="54"> <p>433</p> </td> </tr> </tbody> </table> <h4 class="tocSectionTitle">&nbsp;<strong>ETHICAL STATEMENT</strong></h4> <p><span lang="EN-US"><span lang="EN-US">The IIUM Law Journal is committed to meeting high standards of ethical behaviour at all stages of the publication process. In our <a href="/iiumlj/index.php/iiumlj/manager/files/Downloads/CODEOFPUBLICATIONETHICS.docx" target="_blank" rel="noopener"><span style="text-decoration: underline;">Code of Publication Ethics</span></a>, we set out general expectations for authors, editors, and reviewers of our journal.&nbsp;</span></span></p> <div id="__if72ru4sdfsdfruh7fewui_once" style="display: none;">&nbsp;</div> <div id="__hggasdgjhsagd_once" style="display: none;">&nbsp;</div> SPECIAL FEATURE: ‘Scrutinising’ the Duties of a Lawyer to Advise the Purchaser in the Purchase of a Residential Property as Required by Sec 84 of the Legal Profession Act 1976 (Part I) 2019-01-17T11:08:27+00:00 Baharuddeen Abu Bakar <p><strong>IN MEMORIAM</strong></p> <p>This piece is written in memory of my son Muhammad Zayd bin Bohorudin (1985-2017), advocate and solicitor, and alumnus of the Ahmad Ibrahim Kulliyyah of Laws (‘AIKOL)’, IIUM. He had served the Attorney-General’s Chambers and Zul Rafique and Partners (Advocates and Solicitors). He endeared himself to classmates, teachers and colleagues; and in his brief life fulfilled all his parents’ wishes for him including being chosen by his schoolteachers as a most avid reader of books in primary school.</p> <p>This article was conceived by Muhammad Zayd and I, as an object lesson on how Islamic teachings may be incorporated into the Civil law to improve its moral contents. To reduce the obsession with self; the Civil law which is made without taking moral teachings into account, particularly in modern commercial transactions. May all those who read this monograph be inspired by the overarching teaching of Islam to seek justice in all civil law formulations including the Housing Ministry-drafted sale and purchase agreement. Muhammad Zayd’s mother Jamilah Begum and I dedicate this monograph as <em>sadaqa jariah</em>. May Allah s.w.t forgive him and reward him with a place in jannah.&nbsp;&nbsp; Amin.</p> 2018-12-30T14:25:56+00:00 ##submission.copyrightStatement## Fiqh al-Jihād in Modern Warfare: Analyzing Prospects and Challenges with Reference to International Humanitarian Law 2019-01-17T11:08:26+00:00 Fajri Matahati Muhammadin Thara Kunarti Wahab <p>In discussing the compatibility of the Islamic concept of <em>jihād</em> and international law, most researches focus on the <em>jus ad bellum </em>(justifications of war) of <em>fiqh al jihād</em> and less on the <em>jus in bello </em>(lawful conducts of war)<em>. </em>This article observes the relation between <em>fiqh al-jihād </em>and modern international humanitarian law, and sets out both the prospects and challenges of such a concept in modern times. It is argued that some challenges are due to the lack of emphasis on the principles of <em>fiqh al-jihād </em>that are shared with modern International Humanitarian Law, or the existence of differing opinions between Islamic scholars. Using a literature research, this article finds that the way to address this is to make a unified code of <em>fiqh al-jihād, </em>involving scholars from all schools of thoughts, to agree on a common set of rules.</p> 2018-12-30T14:27:36+00:00 ##submission.copyrightStatement## International Parental Child Abduction in the Malaysian Legal Context: Addressing Issues and the Way Forward 2019-01-17T11:08:25+00:00 Abdul Ghafur Hamid Zaleha Kamaruddin <p>The number of international parental child abduction cases is gradually increasing and the problem has now become a global phenomenon. The worrying situation is that the problem in question is extremely difficult to resolve due to conflicting substantive and procedural laws in various countries. The 1980 Child Abduction Convention is an attempt to address the problem by means of an automatic return mechanism of the abducted child to his country of habitual residence. However, a Malaysian parent would not have that privilege as Malaysia is not a party to the Convention. The primary focus of the present work is to examine whether Malaysia has adequate legal and procedural framework to address the issue of cross-border parental child abduction. The present work makes a thorough analysis of the dual legal system of Malaysia, namely both the civil law and Islamic law streams when dealing with child custody and parental child abduction and assesses in-coming and out-going international parental child abduction cases decided by the Malaysian courts. The article finds that although in the long run, Malaysia should accede to the Child Abduction Convention, there are legitimate concerns on the part of stakeholders and on the fact that the opinion on the ground is against the accession. The article concludes that in the meantime, section 52 of the Child Act 2001 should be amended to strengthen the legal regime regulating parental child abduction in Malaysia.</p> 2018-12-30T14:28:15+00:00 ##submission.copyrightStatement## Prosecuting Piracy at the High Seas: the Experience of Malaysia 2019-01-17T11:08:28+00:00 Muhammad Hameedullah Md Asri Md Khalil Ruslan <p>The development of the law on piracy under two major international treaties; the Geneva Convention, 1958 and the United Nations Convention on the Law of the Sea, 1982 has witnessed great acceptance and application of the law with many coastal states have crafted specific anti-piracy law as a manifestation of their commitments to the international treaties. However, up until today, Malaysia has yet to come out with a single and unified statute against piracy despite being a member to both treaties. The law is scattered in a different set of documents and carried out by various agencies that are responsible to each respective law. It is argued that given this is the position in Malaysia, the prosecution of piracy would be a critical problem for the law enforcement. In this paper, we address this concern by looking at both Malaysian legal framework as well as the experience of the country against international piracy, particularly the case of <em>Bunga Laurel</em>. The findings suggest that there are more than twenty Acts that might be used against piracy. As a sovereign state under the international law, Malaysia also has the right to resort to principles of international law for the apprehension and prosecution of high sea pirates. To this effect, the case of <em>Bunga Laurel </em>has really manifested the successful application of Malaysian law by the High Court of Malaya against international piracy. The paper concludes that the absence of a single anti-piracy law is not necessarily an obstacle, but instead an advantage with great choice of law available for the prosecution in this country.</p> 2018-12-30T00:00:00+00:00 ##submission.copyrightStatement## The South China Sea Arbitration: The Decision and its Implications on the Sovereignty Claims of China and the Philippines 2019-01-17T11:08:22+00:00 Zhao Yan Lee <p>The South China Sea Arbitration which has taken place recently with its final decision published in July 2016 was an action initiated by the Philippines against the People’s Republic of China in an attempt to oppose the latter’s claims of ‘historical rights’ in various maritime features in the South China Sea. The panel was constituted under Annex VII of the United Nations Convention on the Law of the Sea. The Chinese Government opposed the constitution, admissibility and ruling of the entire arbitration. It has since put forward many counter claims to refute the validity of the decision reached. China’s primary concern inevitably lies with the implications of the decision on the ‘Nine-Dash Line’, a historic graphical boundary line that has appeared in the Chinese national atlas as early as 1914. This article will qualitatively dissect the decisions made by the arbitral tribunal from a historical perspective, taking into account diplomatic correspondences and authoritative theories in public international law. Ultimately, this article aims to ascertain the implications of the arbitral rulings on the claims of sovereignty of both countries, which remain the terminal concern of the international community. It will be observed, that the ruling, albeit shrouded in irregularities, has posed irreversible impacts on the situation of the South China Sea saga.</p> 2018-12-30T14:38:19+00:00 ##submission.copyrightStatement## Transplanting the United States' Style of Safe Harbour Provisions on Internet Service Providers Via Multilateral Agreements: Can One Size Fit All? 2019-01-17T11:08:23+00:00 Suzi Fadhilah Bt Ismail Ida Madieha Abdul Ghani Azmi Mahyuddin Daud <p>Ideally, internet service providers (ISP) should not be burdened with policing contents that pass through their services as they have no editorial control over them. The United States Digital Millennium Copyright Act 1998 (DMCA) changes the ball game by making it mandatory on ISPs to take down infringing copyright materials if they received a notice and takedown request from a copyright holder. In exchange, the ISPs enjoy safe harbour from any liabilities that might arise from their user's action. Serious efforts are needed to transpose a similar system via negotiations and multilateral treaties and agreements involving a number of countries such as through the Trans-Pacific Partnership (TPP) Agreement. Despite the withdrawal of the United States’ (US) from the TPP, and in view of the global initiatives of harmonization of intellectual property (IP) laws, this article aims to explore the different system of ISPs’ obligations and liabilities in the twelve TPP member countries. It also examines some of the strengths and weaknesses of each system. It concludes with an argument that whilst some form of safe harbour should be created to assist IP right owners in policing their right, the US private notice and takedown system is not without its flaws and hence, other existing systems which are adopted in some of the TPP member countries are equally feasible and serve a common purpose in tackling the issue of copyright infringement vis-à-vis ISP liability. Eventually, there is no compelling reason to impose one single system on all the TPP member countries to police the internet via ISP liability.</p> 2018-12-30T14:37:29+00:00 ##submission.copyrightStatement## Legal Education in Pakistan: An Overview 2019-01-17T11:08:21+00:00 Sardar Ali Shah Usharani Balasingam Saroja Dhanapal <p>Legal education in Pakistan was initiated before independence and dates back to the 1800s. The first legal education institution was established under the name of ‘University Law College’ in 1868. Currently, there are more than 150 institutions offering law programs, which include universities and law colleges. These institutions are regulated by the Pakistan Bar Council (PBC) and Higher Education Commission (HEC). Over the past decades, there have been a lot of concerns raised on the quality assurance mechanism with regards to legal education in Pakistan. In line with this, the objectives of the current study is to identify and analyse the roles and responsibilities of the HEC and the PBC as regulators of legal education in the country as well as to identify the strengths and weaknesses within this regulatory system as a result of an overlapping of powers between the two bodies. The article ends with recommendations for improvement.</p> 2018-12-30T14:41:28+00:00 ##submission.copyrightStatement## Charitable Endowment (Waqf) for the Benefit of Parentless Children in Malaysia: A Preliminary Study 2019-01-17T11:08:19+00:00 Azizah binti Mohd Badruddin bin Hj Ibrahim Mohammad Hidir bin Baharudin <p>Children are part of the world population and the future of a Nation. Being weak and vulnerable subjects, children deserve full protection from all angles. Adequate protection of children population may guarantee potential and quality leaders for the global world in future. In Malaysia, children form part of the whole Malaysian population. Many children are parentless and having no guardian. These children are in need of protection in all forms. It is obvious that one of the means to protect parentless children is by safeguarding their welfare and benefit through charitable endowment (<em>waqf)</em> provision. This paper seeks primarily to examine charitable endowment (<em>waqf</em>) as a means of safeguarding parentless children's welfare and benefit. Examination focuses on theoretical framework of Islamic law relating to <em>waqf</em> in Malaysia as well as the concept and scope of parentless children. The research is a library research as it is a preliminary stage to provide a sound framework for a further study on instrument of <em>waqf</em> as administered by the States’ Islamic Religious Council for parentless children's benefit in Malaysia. It is believed that the finding of this research will provide further avenue for future research on administration of <em>waqf </em>for the benefit of parentless children in Malaysia.</p> 2018-12-30T14:44:13+00:00 ##submission.copyrightStatement##