IIUM Law Journal 2020-01-15T18:10:48+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> EMBRACING INTERNATIONAL HUMAN RIGHTS LAW: THE MALAYSIAN EXPERIENCE IN NAVIGATING THE DUAL QUALITY OF INTERNATIONAL LAW 2019-12-24T03:55:27+08:00 Farid Sufian Shuaib <p>International human rights law, as with the setting up of the United Nations at the end of the Second World War, promises in the dignity and worth of the human person of nations large and small.&nbsp; International human rights law supposes to save the world population from the scourge of war, despots and other miseries.&nbsp; The international legal order after the end of the Second World War also promises equal sovereignty where all states are equal under international law in spite of inequality of population size, resources and military might.&nbsp; International human rights law thus applies to all states, to protect all populations. International human rights law has been used to liberate colonies and to protect people from oppression. The universal nature of international human rights law means that it applies to all nations large and small. However, the very fact that it is universal also is troublesome when in its application, the Eurocentric understanding of human rights is imposed on all.&nbsp; This paper looks both at the acceptance of Malaysia of international human rights law and her schemes in determining the place for universalism in the application of the law.</p> 2019-12-18T00:04:22+08:00 Copyright (c) 2019 IIUM Law Journal MALAYSIA AND THE ROME STATUTE: THE ISSUE OF SOVEREIGNTY 2019-12-24T03:56:01+08:00 Abdul Ghafur Hamid <p>The announcement of Malaysia’s accession to the Rome Statute on March 4, 2019 was met with strong objection by the opposition and some stakeholders. One of the main arguments made by those who opposed the Rome Statute was that “it will, in the end, destroy national sovereignty.” Although the argument appears to be political rhetoric, it has already injected confusion among the general public and painted a dark picture that the Rome Statute is a hegemonic law that will rob Malaysia of its sovereignty. The main purpose of the present paper, therefore, is to set the record straight and to prove the simple fact that entering into a treaty is in fact a clear exercise of a State’s sovereignty and not to lose sovereignty. Firstly, the paper reappraises the concept of sovereignty: in its original form and its evolution from 16th century to 21st century, on the basis of State practice, doctrine and judicial pronouncements. Secondly, arguments against the Rome Statute made by some powerful States are analysed and rebutted. Thirdly, Malaysia’s situation is objectively evaluated in the light of a comparison between the Rome Statute and other onerous treaties to which Malaysia has already been a party. The paper concludes with the findings that States with their own free will restrict their sovereignty to subject themselves to international law and that Malaysia by no means will lose its sovereignty by acceding to a treaty. Most importantly the Government must prioritize the need to convince the people that it is the right thing to do – it is beneficial to the people of Malaysia or it can achieve the higher aim of protecting humanity.</p> 2019-12-18T00:00:00+08:00 Copyright (c) 2019 IIUM Law Journal AN APPRAISAL OF THE APPLICATION OF FIQH AL-HANAFI UNDER ISLAMIC FAMILY LAW (FEDERAL TERRITORIES) ACT 1984 2019-12-24T03:49:44+08:00 Azizah binti Mohd <p>Malaysia is a Muslim country consisting of thirteen States and Federal Territories (Kuala Lumpur, Labuan and Putrajaya). In principal, the official <em>madhhab</em> that is practised &nbsp;in Malaysia is Shafi’i<em> Madhhab</em> and this becomes common to all Malaysians even though it is not officially registered in the identification card of a Malaysian. Accordingly, in many religious affairs and practices, the society is based upon the principles or <em>fiqh al-Shafi’i</em>. Nevertheless, views of other <em>Sunni madhhab</em> is freely practiced by all Malaysians. Furthermore, the codification on Islamic law in the State Enactments in all States in Malaysia is based upon four <em>Sunni</em> schools of law. It follows that the Islamic law in Malaysia is not purely based on the Shafi’i <em>madhhab</em> and in many occasions adopted the view of <em>Hanafi</em> school depending on the adaptability of the opinion to the society. This article deals with the application of <em>fiqh al-Hanafi</em> under the Islamic Family Law (Federal Territories) Act 1984. Analysis will extend to the practices in the Malaysian Syariah Court when dealing with cases involving Muslims and the most appropriate view of the <em>madhhab</em> that is to be adopted by the Syariah Court in order to solve a particular issue. The study employs the qualitative method of study where it only involves library research. It is believed that this research will be beneficial to all who seek knowledge and useful to all researchers, academicians, legal practitioners, students and scholars.</p> 2019-12-19T15:04:38+08:00 Copyright (c) 2019 IIUM Law Journal EXAMINING THE EVOLUTION OF WAQF REGULATIONS IN SELANGOR: AN ANALYSIS OF THE GOVERNANCE FRAMEWORK AND TRANSFORMATIVE APPROACH 2019-12-24T03:52:01+08:00 Zati Ilham Abdul Manaf Sharifah Zubaidah Syed Abdul Kader Nor Asiah Mohamad <p>The inadequacy of comprehensive laws for <em>Waqf</em> administration is one of the main issues that has limited the development of <em>Waqf</em> in Malaysia. Whilst most states in Malaysia rely on their Administration of Islamic Law enactments, in 1999 Selangor pioneered a <em>Waqf</em> enactment which specifically oversees <em>Waqf</em> administration and management. With the promulgation of the Selangor <em>Waqf</em> Enactment 1999, the administration of <em>Waqf</em> in Selangor became more regulated and structured. However, as matters pertaining to <em>Waqf</em> practices became more complex, Selangor repealed its 1999 <em>Waqf</em> Enactment and replaced it with the 2015 <em>Waqf</em> Enactment. This research therefore analyses the evolution of <em>Waqf</em> in Selangor through the two respective enactments, by identifying the changes in practices and scrutinising the rationales for the development of the laws. It also analyses how the laws have impacted the <em>Waqf</em> governance framework in the state. By assessing the position of the 2015 <em>Waqf</em> Enactment, it determines whether the current legislative demand posed by <em>Waqf</em> development in the state is met and whether the change in approach should be followed by other states in Malaysia. Doctrinal legal research is utilised to examine the two enactments respectively. Legislative Assembly Proceedings related to the promulgation of the respective enactments were also examined to further understand the reasoning behind the repeal and the introduction of certain provisions. It is found that although the 2015 <em>Waqf</em> Enactment is more comprehensive than the 1999 <em>Waqf</em> Enactment, further improvements can be made to better achieve transparency and accountability on the part of the <em>Waqf</em> administrators.</p> 2019-12-18T18:30:13+08:00 Copyright (c) 2019 IIUM Law Journal THE CODE OF MUSLIM PERSONAL LAWS OF THE PHILIPPINES: BEYOND THE LENSES OF BONDAGJY v. BONDAGJY 2019-12-24T03:54:52+08:00 Norhabib Bin Suod Sumndad Barodi <p>The dynamics of mixed marriages governed by the Code of Muslim Personal Laws of the Philippines (Muslim Code) creates variables that sometimes lead to the <em>non-application</em> of the said Code to <em>Shari’ah </em>cases arising from said marriages. This is highlighted in the familiar but controversial case of <em>Bondagjy v. Bondagjy, </em>wherein the Supreme Court of the Philippines did not apply the Muslim Code on the issue of custody of minor children born to a Muslim marriage prior to becoming ‘mixed’ by the conversion of the female party (Muslim convert) to another religion. The article argues that whatever variables are attendant in a specific conflict of rights where the Muslim Code applies, the resolution of said conflict must be in accordance with its provisions or other applicable Muslim laws. This perspective sustains the character of the Muslim Code as the applicable law in each <em>Shari’ah</em> case and disfavours the diminution of said character by the <em>non-application</em> of the Muslim Code. The article further argues that the application of the provisions of the Muslim Code affecting conflict of rights must be reinforced with the requisite good faith and honesty on the part of each party, Muslim and non-Muslim alike, to ensure a just and fair resolution of each <em>Shari’ah </em>case. The article achieves its gist by evaluating how the ‘applicability clause’, the ‘construction and interpretation rules’, and the ‘conflict of provisions rules’ of the Muslim Code operate in the context of and beyond <em>Bondagjy v. Bondagjy </em>and other relevant cases. This critical analysis highlights the present status of the Muslim Code as the initial premise in the formulation of measures that are responsive to and promotive of the role of mixed marriage as a significant avenue for Muslim and non-Muslim relations in the Philippines and other foreign jurisdictions where similar relations exist.</p> 2019-12-18T01:07:04+08:00 Copyright (c) 2019 IIUM Law Journal TOWARDS ENFORCEABLE STANDARDS, RULES AND RIGHTS IN STRATA MANAGEMENT: AN ANALYSIS 2019-12-24T03:50:19+08:00 Jing Zhi Wong <p>The Strata Management Act 2013 (Act 757) and the Strata Titles Act 1985 (Act 318) confer broad powers on strata communities to self-manage and self-regulate through body corporates (termed Strata Management Bodies). The policy behind these legislations promotes maximum autonomy and self-regulatory powers for Strata Management Bodies to, through their internal rule-making and decision-making processes, govern themselves in ways that best suit their needs and interests. Consequently, judicial and administrative recognition of Strata Management Bodies’ autonomy has left a lacuna of matters which are not justiciable by the Courts and/or the Strata Management Tribunal. This adversely affects homeowners’ ability to access substantive justice. This article, through doctrinal analyses of key Malaysian and Western Australian cases, sheds light on a selection of strata disputes illustrating the inadequacies of the law on strata title and strata management, and the lack of enforceable standards of good management practices. The article also explores how the apathetic application of general principles of company law to strata management bodies has left a lacuna of non-justiciability. Consequently, this article argues the case for strata law reform. It advocates for law reform that promulgate standards, rules and rights of good strata management as enforceable law, rather than mere general, high-level, unenforceable and unjusticiable principles.</p> 2019-12-19T10:02:56+08:00 Copyright (c) 2019 IIUM Law Journal MONETARY COMPENSATION AS A REMEDY FOR UNFAIR DISMISSAL: A STUDY IN UNITED KINGDOM AND MALAYSIA 2019-12-24T03:54:18+08:00 Siti Fazilah Ashgar Ali Ali Mohamad Zuraini Abdul Hamid <p>Although unfair dismissal is not considered as a new issue in the current era, it may nevertheless severely affect the employees' right to earn a salary and other benefits such as retirement saving, among others. In order to recompense the employee's rights of employment, the legislature in many jurisdictions has introduced reinstatement as the remedy for unfair dismissal. Unfortunately, reinstatement is not awarded in most cases due to the long delay from the date of dismissal to the date of an award which may take a few years, where in the meantime the claimant may have comfortably settled in his new employment and in most cases would not desire reinstatement. Realising the above, the legislature has allowed the alternative remedy of monetary compensation for unfair dismissal. In fact, today, monetary compensation has become the remedy in both Malaysia and the United Kingdom. The Employment Rights Act 1996 of the United Kingdom recognises several remedies for unfair dismissal such as reinstatement, re-engagement, and monetary compensation. On the other hand, the Malaysian Industrial Relations Act 1967 merely provides reinstatement as the remedy for unfair dismissal; however, monetary compensation has been allowed vide the Industrial Court Practice Direction No. 1 of 1987, to be awarded at the discretion of the Industrial Court Chairman. In light of the above, this article discusses the awarding of monetary compensation in the United Kingdom and Malaysia with reference to legislation and decided cases in the above jurisdictions.</p> <p>&nbsp;</p> 2019-12-18T11:38:39+08:00 Copyright (c) 2019 IIUM Law Journal SUPREME COURT’S JUDICIAL REVIEW AUTHORITY VS. CONSTITUTIONAL SUPREMACY IN THE MALDIVES: DOES THE CONSTITUTION STILL REIGN SUPREME? 2019-12-24T03:51:27+08:00 Aminath Asfa Shafie Shamrahayu Abdul Aziz <p>The Supreme Court of Maldives is entrusted with the responsibility of upholding the supremacy of the Constitution. However, within the last ten years, the Supreme Court has been criticized for the Court’s slow but steady progression to encroach on the powers of the parliament and as a result, undermine the supremacy of the Constitution. The objective and purpose of this article are to entail how the Supreme Court of Maldives had utilized its power to judicial review to undermine the supremacy of the Constitution over the years. This article uses library-based research. It analyses the principles of separation of powers, checks and balances and judicial review and how these principles are adopted in the Maldives. In addition, this article reviews and analyzes the decisions of the Supreme Court which are in contradiction to the Constitution. The findings of the article are evidential of how the Supreme Court had performed the constitutionally mandated legislative functions of the parliament through the Court’s power to judicial review. The Supreme Court had established guidelines, regulated the rights and freedoms specified in the Constitution, and determined procedures.&nbsp; This article concludes by emphasizing the importance of exercising restraint when performing the constitutionally mandated functions of each branch, in order to ensure the supremacy of the Constitution as well the effective functioning of the three branches of government.</p> 2019-12-19T00:08:17+08:00 Copyright (c) 2019 IIUM Law Journal AN ANALYSIS OF THE GOOD FAITH BARGAINING PRACTICE IN THE TRADE UNION RECOGNITION PROCESS: REFORM OF THE MALAYSIAN TRADE UNION LEGAL FRAMEWORK 2019-12-24T03:53:44+08:00 Siti Suraya Abd Razak Nik Ahmad Kamal Nik Mahmod <p>The trade union recognition process is a pre-requisite to the collective bargaining action of a trade union. The recognition is important to ascertain the competency of a trade union and the acceptance by the workers to represent them in the collective bargaining action with the employer. However, the ambiguities in the existing legislations on the trade union recognition process in Malaysia and the anti-union practices of the employer are currently depriving the workers of their rights to negotiate for better working conditions. The primary focus of the present work is to identify the weaknesses of the recognition legal framework and the anti-union practices of employers in the recognition process of trade unions. Secondly, is to critically analyse the good faith bargaining practice in other countries and its significance to the recognition process in Malaysia. To explore the anti-union tactics perpetrated by employers, semi-structured interviews have been conducted to analyse the trade unions’ experience in their recognition claims. This research employed a qualitative approach as the instrument to study the good faith bargaining practices in the Australian and New Zealand labour law framework. The findings reveal that the good faith bargaining practices in Australia and New Zealand have improved the odds for trade unions to represent the workers in negotiating collective agreements. The study finally concludes that in order to reform the recognition process of trade unions in Malaysia, the good faith bargaining practice should be implemented in the nation’s industrial relations law framework.</p> 2019-12-18T11:46:18+08:00 Copyright (c) 2019 IIUM Law Journal CORPORAL PUNISHMENT IN MALAYSIAN PUBLIC SCHOOLS: LEGAL AND EDUCATIONAL PERSPECTIVES 2019-12-24T03:53:10+08:00 Usharani Balasingam Azmawaty Mohamad Nor Shanina Sharatol Ahmad Shah <p>There is a need to consider whether the current school environment cum climate and punishment for indiscipline or behaviour management in Malaysia is relevant and effective in the current age. Foundational values primarily begins at home and in schools. In this regard the school is viewed not only as a place of learning but as a community of relationships where bonds are built where characters and values are shaped. It needs to be a conducive environment for the successful realisation of the Malaysian Education Blueprint (2013-2025) to develop value driven, tolerant and responsible Malaysians. It is a place to nurture inclusivity, respect for the person, consideration, cooperation, respect for diversity, unity, trust and other values desired under the Education Ministry. In this regard, this paper argues that Malaysia Education (School Discipline) Regulations 1959 which was made under a repealed Act need to be reconsidered for its effectiveness. The impact of corporal punishment and violence on children is covered in this paper in addition to relevant court decisions involving teachers and schools. Malaysia has acceded to the Convention for the Rights of the Children, this paper explores the compatibility of the convention with the School discipline Regulation 1959.</p> 2019-12-18T11:59:47+08:00 Copyright (c) 2019 IIUM Law Journal KEY PERFORMANCE INDICATORS AND EMPLOYMENT CONTRACTS IN MALAYSIA: A LEGAL ANALYSIS 2020-01-15T18:10:48+08:00 Siti Zaharah Jamaluddin Mohammad Abu Taher Ng Seng Yi <p>Key performance indicators (KPIs) are considered as measurable values used by for companies, institutions, or organisations in order to estimate the success rate of their set objectives. Therefore, it is important to select appropriate indicators that will be used for the measurement. In Malaysia, the KPI came into the spotlight when the Prime Minister introduced it for measuring the performance of the cabinet ministers in 2009. Since then, KPIs became the focus in the private and the public sectors in Malaysia. Thus, this article attempts to examine the values behind KPIs and its function within the contract of employment. The article further examines whether non-performance of KPIs can be categorised as poor performance, which could open employees to termination or disciplinary actions. This article is mainly based on the analysis of existing literature, journal articles, books, information obtained in online news portals and judicial decisions. The article finds that non-performance of KPI can be used as a basis to terminate or dismiss an employee from employment.</p> 2019-12-19T01:54:37+08:00 Copyright (c) 2019 IIUM Law Journal "CONTEMPORARY MUSLIMS AND HUMAN RIGHTS DISCOURSE: A CRITICAL ASSESSMENT" BY UMAR AHMAD KASULE 2019-12-24T03:52:36+08:00 Fajri Matahati Muhammadin 2019-12-18T12:04:54+08:00 Copyright (c) 2019 IIUM Law Journal