IIUM Law Journal 2020-06-30T14:36:20+08:00 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> commenting on recently published law books. </span></p> <p>&nbsp;</p> <p>&nbsp;<strong>ETHICAL STATEMENT</strong></p> <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> FINTECH REGULATORY SANDBOXES IN AUSTRALIA AND MALAYSIA: A LEGAL ANALYSIS 2020-04-20T12:27:04+08:00 Maryam Khalid Sherin Kunhibava <p>With the era of digitalization, regulatory sandboxes have been the trend adopted by most financial regulators around the world in regulating financial technology (fintech). Regulatory sandboxes act as a pilot programme to regulate fintech services and products with several legal exemptions given to the service providers within established parameters. In 2016, the Australian Securities and Investments Commission and the Malaysian Central Bank followed the United Kingdom’s Financial Conduct Authority (FCA) to introduce regulatory sandboxes within their legal framework. To date, previous literature has only provided a minimal analytical overview of the Malaysian and Australian regulatory sandbox. Hence, this article aims to fill that gap in literature. The methodology used for this study is both doctrinal and comparative legal analysis. The main objective of this study is to analyse the key characteristics of fintech regulatory sandboxes by comparing the Australian and Malaysian regulatory structures of these sandboxes. Due to nascent nature of Malaysian and Australian fintech regulations, this contributes to the growing knowledge in the financial regulation literature. Moreover, the findings on the operation of the regulatory sandboxes in both jurisdictions is expected to bring practical value for further research.</p> 2020-06-30T00:00:00+08:00 Copyright (c) 2020 IIUM Law Journal SYNTHETIC BIOLOGY AND BIOSAFETY GOVERNANCE IN THE EUROPEAN UNION AND THE UNITED STATES 2020-03-30T15:30:27+08:00 Frank Akpoviri Zinatul Zainol Syarul Baharum <p>This article examines how synthetic biology, which is the construction of novel biological parts, devices, and systems, as well as the modification of regular organisms, impacts biosafety regimes in the European Union (EU) and the United States (US). The article examines the nature and benefits of synthetic biology. It then reviews associated biosafety challenges, before analysing the suitability of governance frameworks in the EU and the US in dealing with these challenges. Based on this analysis, the article contends that, despite some similarities with older technologies, synthetic biology is essentially novel. Consequently, it undermines existing biosafety regimes in both jurisdictions. The article advocates for effective governance, combining formal regulation and self-governance, in addition to the global coordination of governance measures. This will help maintain an agile policy and curtail any regulatory loopholes. This article fosters awareness on the existence of many unresolved controversies over the synthetic biology technology.</p> 2020-06-30T00:00:00+08:00 Copyright (c) 2020 IIUM Law Journal THE UNITED NATION’S ‘BEIRUT DECLARATION AND ITS 18 COMMITMENTS ON FAITH FOR RIGHTS’: A CRITIQUE FROM AN ISLAMIC PERSPECTIVE 2020-05-15T10:51:49+08:00 Fajri Matahati Muhammadin <p>In March 2017, the United Nations Office of the High Commissioner for Human Rights (UN OHCHR) launched a “Faith for Rights” initiative. This initiative aims to gather the adherents of various religions around the world and show that they support human rights as part of their religion. This Faith for Rights initiative hosted a workshop in Beirut, which resulted in a document titled “the Beirut Declaration and the 18 Commitments on Faith for Rights” which is the centre of this article. Islam is one of the faiths claimed to be represented in this initiative. However, is Islam truly represented properly? Did this initiative properly accommodate Islamic teachings? First, this article notes that Islam does believe in human rights and has its own concept of it. Second, this article continues by examining the Beirut Declaration and its 18 Commitments on Faith for Rights and seeing whether the points agreed are consistent with Islamic principles. It is found that this document does not accommodate Islam properly. It is not suggested that Islam does not recognize human rights. However, the concept of human rights agreed by this document does not represent and even breaches the teachings of Islam. This article, therefore, recommends that Muslims should not accept “the Beirut Declaration and the 18 Commitments on Faith for Rights”, and instead they should accept the concept of human rights which are properly prescribed in the noble teachings of Islam. This article emphasizes that in the future, Muslim representatives to human rights initiatives must be weary and never agree on any declaration that might contravene any Islamic teachings or which could lead to such possibilities such as this.</p> 2020-06-30T00:00:00+08:00 Copyright (c) 2020 IIUM Law Journal FEED-IN TARIFF, AUCTIONS AND RENEWABLE ENERGY SCHEMES IN MALAYSIA: LESSONS FROM OTHER JURISDICTIONS 2020-02-21T11:55:20+08:00 Farahdilah Ghazali Abdul Haseeb Ansari Maizatun Mustafa Wan Mohd Zulhafiz Wan Zahari <p>Malaysia introduced Feed-in Tariff (FiT) in 2004 to incentivise renewable energy projects through the implementation of the National Renewable Energy Policy and Action Plan 2009 and the Renewable Energy Act 2011 (Act 725). Nevertheless, this FiT system failed to assist the country in increasing electricity generation from renewable sources. Later, auctions were introduced to boost the renewable shares, particularly solar photovoltaic power generation, after the quota for solar under the FiT were taken up. The tenders incorporated standard form of the contract along with a long-term Power Purchase Agreements (PPA) which induced for the lowest price for power generation and guaranteed access to the national grid. This measure is considered as an excellent instrument to expand the renewable energy sector. There has always been a question: whether abandoning FiT for auctions is a feasible choice in the interest of sustainable clean energy for sustainable development? The main objective of the present article is to investigate the implementation of auctions to support renewable energy development in Malaysia and to examine whether auctions could replace FiT. This study adopted a doctrinal and comparative approach. It concluded that competitive bidding is preferable to support mature technology and large-scale generations, while FiT should be sustained to support new technologies. The article has also identified several countries such as Germany and India, who have successfully implemented competitive bidding systems to support the aspiration to expand the renewable energy sector.</p> 2020-06-30T00:00:00+08:00 Copyright (c) 2020 IIUM Law Journal MACHINE-READABLE TRAVEL DOCUMENTS IN AVIATION SECURITY AND INFORMATION PRIVACY: AN ISLAMIC LAW PERSPECTIVE 2020-04-06T16:09:31+08:00 Ismail Adua Mustapha <p>For the purpose of preventing civil aviation offences and maintaining security of civil aviation, passengers are required to give biometric information which must be stored in the International Civil Aviation Organization’s (ICAO) approved Machine Readable Travel Documents (MTRDs) and that such information obtained should be adequately secured against skimming and eavesdropping. Since its inception, many countries including the Islamic countries have adopted the machine to process information of passengers coming in and going out of their states. Academic writers have written on the challenges of skimming and eavesdropping as they are related to information privacy versus aviation security in the conventional law but the Islamic law position has not been dealt with. The article therefore attempts to explore the Islamic law position on the use of Machine Readable Travel Documents (MRTDs) and the challenges being posed to aviation security. The paper is qualitative in nature and relies on primary and secondary sources of Islamic law to argue its position. The paper finds that Islamic law expressly preserves individual’s information privacy and that skimming and eavesdropping are allowed to promote public security and prevention of evil. Its further provides punishment for whoever transgresses against information privacy. It concludes that the adoption of MRTDs to obtain information about private affairs of passengers is in line with the principle of Islamic law.</p> 2020-06-30T00:00:00+08:00 Copyright (c) 2020 IIUM Law Journal MALAYSIA’S LEGAL RESPONSE TO TACKLING THE CRIME OF ONLINE CHILD PORNOGRAPHY 2019-12-16T00:06:16+08:00 Kirama Nasim Manbi Ushama Juriah binti Abdul Jalil <p>Child pornography is not a novel crime. For many years, it has been a prevalent concern but since the availability of the internet, it has become more universal and pervasive, as cyberspace provides offenders with greater accessibility to victimize children. In response to this, numerous countries around the world, including Malaysia have implemented and enhanced regulations and policies to accord better protection to children from the crime. The aim of this paper is to highlight Malaysia’s legal response and its efficacy in repressing the crime of online child pornography. Accordingly, the paper uses a doctrinal approach with content analysis to consider four issues. Firstly, the international and regional legal frameworks addressing online child pornography will be explored. Secondly, the paper provides an overview of the increasing threat of the crime in Malaysia. Subsequently, the legislative intervention taken by the nation to curb the crime is analysed, accompanied by an assessment on whether the existing law is consistent with international conventions. The overall finding reveals that the Malaysian legal mechanism has been substantially reformed to safeguard children in the country from online child pornography, especially after the enactment of the Sexual Offences Against Children Act 2017.</p> 2020-06-30T00:00:00+08:00 Copyright (c) 2020 IIUM Law Journal TRIPS AGREEMENT AND MALAYSIAN INTELLECTUAL PROPERTY LAWS: DATA EXCLUSIVITY v PATENT 2020-03-19T10:39:55+08:00 Rahamatthunnisa Mohamed Nizamuddin <p>This study analyses the provisions of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement with respect to the various intellectual property protection mechanisms. The main purpose of this study is to demonstrate that Malaysia is a TRIPS compliance country and have established intellectual property laws including the incorporation of data exclusivity laws. This study also illustrates that data exclusivity and patent are two different intellectual property protection mechanisms required under the TRIPS Agreement. Moreover, this study clarifies the misconception that data exclusivity and patents are somehow related; such that data exclusivity is an extension of patent rights and that it is often regarded as a TRIPS-plus provision. The study is conducted based on qualitative research, predicated on primary sources such as the TRIPS Agreement and the various laws with respect to intellectual property in Malaysia. It is further supported by secondary sources from journals and information provided on relevant authorities’ websites. The results of the study show that Malaysia is a TRIPS compliance country and that data exclusivity is an intellectual property protection mechanism that is established pursuant to Article 39.3 of the TRIPS Agreement. Hence, this study concludes that member countries of the TRIPS Agreement that have established data exclusivity protection mechanism to protect undisclosed data submitted to their respective authorities for the purpose of marketing approval of pharmaceutical or agricultural chemical products, including Malaysia, are indeed in compliance with the obligation set under Article 39.3 of the TRIPS Agreement.</p> 2020-06-30T00:00:00+08:00 Copyright (c) 2020 IIUM Law Journal THE CONCEPT AND APPLICATION OF HIBAH AS A FINANCIAL INSTRUMENT FROM THE MALAYSIAN LEGAL PERSPECTIVE: AN ANALYSIS 2020-03-01T00:48:53+08:00 Rusni Hassan Nor Azdilah Mohamad Zaizi <p>The principle of <em>hibah</em> (gift) is a popular subject in the Islamic law of administration, relating to wealth management. <em>Hibah</em> is a solution to deliver wealth to non-heirs apart from the <em>wasiyyah</em> (bequest) or <em>faraid</em> (succession) systems. However, in the broader context of wealth management in Malaysia, <em>hibah</em> has also been used as a financial instrument in the Islamic financial institutions’ products and services. Based on that, the legality and enforcement of <em>hibah</em> with regards to the related applicable laws in the Malaysian legal system might be affected in two different situations. First, the conflict of jurisdiction may be arising from the fact that the matter of the classical <em>hibah</em> concept will be under the jurisdiction of the classical <em>hibah</em> concept will be under the jurisdiction of the States, whilst the commercial <em>hibah</em> which has been structured with the Islamic banking and takaful products and services established by the Islamic financial institutions, will be under the Federal government. The scarcity of literatures discussing <em>hibah</em> from the perspective of Islamic banking and finance contributes to the limited understanding and awareness among the society on this matter. In view of that, this study explores and analyse the concept and application of <em>hibah</em> as the financial instrument in the Islamic banking and takaful products and services. This study also analyzes some relevant <em>Shari’ah</em> and legal issues on the application of <em>hibah</em> in the Islamic banking and takaful products and services, which are currently practiced by the Malaysian Islamic financial institutions. This is done by assessing relevant statutes and decided cases. This article finally provides recommendations to improve and enhance the application of <em>hibah</em> as an Islamic banking and takaful products and services in Malaysia.</p> 2020-06-30T00:00:00+08:00 Copyright (c) 2020 IIUM Law Journal FISCAL ADVANTAGE OF WAQF AND THE RULE OF TAX EXEMPTION FOR CHARITABLE PURPOSES UNDER THE INCOME TAX ACT 1967 2020-04-05T14:25:47+08:00 Nur Yuhanis Ismon Mohsin Hingun <p>This study explores the principle of <em>waqf</em> in the context of current tax policies governing <em>waqf</em> properties. In Islamic law, <em>waqf </em>is defined as charity whereby the donor endows the property in the name of Allah SWT for the benefit of the public at large. However, for tax exemption purposes, there is no specific provision in the Income Tax Act 1967 (ITA). <em>Waqf</em> is under the State List in the Federal Constitution and it comes under the jurisdiction of state governments. Currently, there is a misunderstanding about tax deduction in Section 44(6) and Section 44(11C) of ITA that includes <em>waqf</em> as a gift and gets the same tax treatment. Nevertheless, there are strong justifications which state that <em>waqf</em> does not fall within the scope of Section 44(6). The study will analyse the status of <em>waqf </em>institutions which are eligible for tax deduction and the reason why <em>waqf</em> does not fall within the scope of donation under section 44(6) of the ITA. The methodology used in this study is doctrinal legal research whereby the analysis focuses on the legal principle of <em>waqf </em>in Islamic law and the rule of tax exemption under the ITA. As a result, the study found that there is inconsistency in implementing <em>waqf </em>for tax rebate purposes. The recommendation of this study is that a comprehensive <em>waqf</em> guideline should be introduced to ensure consistent development of <em>waqf</em> to enhance the public interest. </p> 2020-06-30T00:00:00+08:00 Copyright (c) 2020 IIUM Law Journal