IIUM Law Journal

BEYOND PROSECUTION: THE ATTORNEY GENERAL'S ADVISORY ODYSSEY

Datuk Ahmad Terrirudin Mohd Salleh — 2024-05-31

Speech delivered at the 20^th Professor Emeritus Ahmad Ibrahim Memorial Lecture 2024 on 'Beyond Prosecution: The Attorney General's Advisory Odyssey', International Islamic University Malaysia, 7^th March 2024.

NASAB (FILIATION) OF CHILDREN IN ASSISTED REPRODUCTIVE TECHNOLOGY (ART) UNDER THE SHARĪʿAH DISCOURSE

Majdah Zawawi — 2024-05-31

Sharīʿah emphasises safeguarding nasab (filiation) because all other rights and responsibilities rely on the legitimacy of the children. Biotechnological human procreation creates several ethico-legal challenges, including the filiation of ART-resulting children and threats to the concept of family in Islam. To protect children’s rights, this paper conducts a textual study on Sharīʿah sources and their application by Muslim jurists to deal with issues of filiation in ART-births, particularly those involving controversial events. Significantly, it analyses how maternal and paternal relationships are established in various scenarios, including assistance from co-wives, the use of preserved embryos in cases of divorce, death, or mafqood-ul-khabar (a missing person without news), and donation practices (sperm, eggs, or uteri). Essentially, the research examines the question of whether the nasab determining Sharīʿah principles are sufficient to overcome filiation issues in ART or not. Utilising a qualitative research paradigm, this study employs a library-based methodology to conduct a thorough analysis of primary sources, comprising the Qurʾān, Sunnah, subsidiary sources, and relevant literature. Notably, the article highlights the position of Muslim countries practicing Sharīʿah in addressing ART-related issues. The study concludes by putting forward a novel approach to the ongoing discourse on the harmonising of Sharīʿah, family law, and emerging reproductive technologies.

SHARIAH- COMPLIANT MEDICAL TOURISM: AN EVALUATION OF THE LEGAL IMPEDIMENTS OF ITS IMPLEMENTATION IN MALAYSIA

Noor Shuhadawati Mohamad Amin — 2024-05-31

Malaysia is one of the first countries in the world to introduce the halal standards MS1500: 2004 in its vision to become the global halal hub. With the inception of halal standards in 2004, the practical guidelines for the food industry on the production, preparation, handling and storage of halal food are now available in a more structured and convenient form. With the advancement of technology in today’s world, the focus of halal standards is no longer confined to the food industry. The initiative to introduce halal standards has now been extended to include other industries such as cosmetics, finance, fashion and healthcare. In the healthcare industry, the demand for halal products is accelerating, thanks to the growing awareness of Muslims on the obligation to consume and use halal products. The healthcare industry too has a major potential for demand since the products are also consumable, specifically pharmaceutical products such as medicines and vaccines. Nonetheless, there are legal challenges that pose impediments to further promoting shariah-compliant medical tourism in Malaysia. This study which is doctrinal in nature, analyses the existing legal framework of the healthcare system and medical tourism in Malaysia. Despite the promising demand for halal medical products, there are challenges in promoting this special segment of the industry to everyone. Uncertainty regarding the correct term to portray Islamic medical tourism, various versions of shariah-compliant medical tourism, lack of standardisation of shariah principles, the inadequacy of legal regulatory framework, and the proliferation of international halal certification bodies, will subsequently impede the growth of shariah-compliant medical tourism in Malaysia. The study attempts to discuss these aspects and provides some suggestions to promote shariah-compliant medical tourism globally.

THE INTERSECTION OF ARTIFICIAL INTELLIGENCE AND INTERNATIONAL TRADE LAWS: CHALLENGES AND OPPORTUNITIES

Asif Khan — 2024-05-31

Artificial Intelligence (AI) is reshaping international trade, presenting both challenges and opportunities for existing global legal frameworks. This research explores the intersection of AI and international trade laws, focusing on key areas such as data protection, intellectual property rights (IPR), trade barriers, and regulatory harmonisation. The cross-border flow of data in trade activities raises concerns about privacy and data protection, necessitating the balance between trade liberalisation and regulatory compliance. Moreover, the emergence of AI-generated intellectual property assets poses novel questions regarding ownership, liability, and enforcement mechanisms. Discriminatory practices and trade barriers fueled by AI-driven automation and predictive analytics threaten market access and fair competition. Harmonising regulatory approaches to AI governance is imperative to promote interoperability, innovation, and market integration. Despite these challenges, AI offers significant opportunities to enhance trade facilitation, efficiency, and dispute resolution mechanisms. Embracing AI technologies can streamline supply chains, reduce transaction costs, and expedite customs procedures. Additionally, AI-driven dispute resolution mechanisms offer innovative solutions to resolve trade disputes promptly and efficiently. To address these complexities, policymakers must enhance data governance frameworks, promote IPR harmonisation, and foster regulatory cooperation at both domestic and international levels. By embracing the transformative potential of AI while upholding fundamental principles of fairness and transparency, stakeholders can build a more resilient and inclusive global trading system. The qualitative research methodology has been applied to the following article.

THE LAW OF RESTITUTION OF UNJUST ENRICHMENT IN MALAYSIA: A SEARCH FOR PRINCIPLE, POST ‘DREAM PROPERTY’

Siti Aliza Alias — 2024-05-31

Part VI of the Malaysian Contracts Act 1950 ('of certain relations resembling those created by contract') embodies the old notion of quasi-contract or implied contract - what is now known under English Law and in other Common Law jurisdictions as restitution of unjust enrichment. The landmark decision of our Federal Court, in the case of Dream Property Sdn Bhd v Atlas Housing Sdn Bhd gave recognition to ‘unjust enrichment’ as a separate cause of action in Malaysia. However, the law of unjust enrichment in Malaysia is at its infancy and still developing. This paper focuses on two main questions that arise from that decision. Firstly, on the legal consequences of the court's apparent adoption of the civil law 'absence of basis' approach to determine whether an enrichment is 'unjust', rather than the traditional 'unjust factor' approach under English Common Law, and how this might affect the future development of unjust enrichment as a separate cause of action in Malaysia. Secondly, on the larger question of what the law of unjust enrichment in Malaysia now is or should be - whether the correct approach is to develop unjust enrichment within an apparent ‘dual legal regime’ ie. the statutory regime under the Contracts Act 1950 and the Common Law regime; or rather to use the Common Law by analogy to develop the contents (ie. detailed rules and principles) of the Contracts Act 1950 (Part VI) in a principled approach that may require modern restatement for practical use today. Using the doctrinal and comparative methodology, it is the paper’s findings that the latter ‘unified’ approach is preferable as a way forward for Malaysian courts to develop our law of unjust enrichment and using the ‘unjust factor’ approach, for reasons outlined in this paper.

TRANSFORMATION OF COLLATERAL HIBAH IN AMANAH RAYA BERHAD: ANALYSIS FROM THE SHARIAH PERSPECTIVE AND ITS IMPLEMENTATION IN MALAYSIA

Muhamad Mu'izz Abdullah — 2024-05-31

The importance of hibah instrument in estate planning, whether movable or immovable assets is gaining more attention among property owners. Thus, various forms of hibah offerings in the market have been introduced by various institutions and agencies to meet the needs of property owners. An example of a hibah product that gains a lot of attention is Collateral Hibah. However, the verification of Collateral Hibah still gives rise to different judgments in the Syariah High Courts in Malaysia. Thus, this study will analyse the transformation of the Collateral Hibah in Amanah Raya Berhad (ARB) from the shariah perspective. The product was first introduced as "Declaration of Hibah" in 2015 and subsequently transformed into what is known as "Hibahku" in 2023. This study is qualitative and applied research methods which examined statutory provisions, articles, and books. In addition, semi-structured interviews were conducted with two ARB officers from the Product Development Department (JPP), and a hibah officer from the ARB Melaka Branch. The results obtained were analysed descriptively. This study found that the transformation of the implementation of Collateral Hibah in the ARB has the potential to meet more systematic property planning.‎

URBAN ART IN MALAYSIA: EXPLORATION OF LEGAL ISSUES AND OPPORTUNITIES

Suriyati Salim — 2024-05-31

In Malaysia, there has been an increasing interest in arts within the urban spaces. Urban art, also known as public art, street art, graffiti and murals is used as a form of creative expression. However, the legal frameworks and complexities surrounding urban art have been underexplored. This study examines the existing legal frameworks and issues governing urban art in Malaysia through qualitative and doctrinal researches that involves a literature review of primary and secondary sources. The findings reveal a fine line between artistic expression and potentially criminal acts, particularly in cases of unauthorised creation. This highlights the urgent need to strengthen legal protection and recognition for artists. The study also highlights the economic benefits of integrating art into urban planning and policies, such as increased tourism and community development. However, analysis of relevant legal frameworks, including the Copyright Act 1987 and the National Heritage Act 2005, reveals their inadequacy in comprehensively addressing legal issues intrinsic to urban art. Therefore, this study concludes that there is a need for improved legal frameworks that protect artists’ rights and support the growth of urban art within the country.

DISPUTE IN CROSS-BORDER WAQF: MITIGATION, RESOLUTION, AND THE ROLE OF WAQF AUTHORITY

Shandy Primandasetio Freddy — 2024-05-31

Waqf, or Islamic Trust, embodies the concept of rahmatan lil’alamiin, or compassion for all people and the whole universe. Its benefits run across countries without race or religious limitations. Cross border-waqf is a waqf transaction with international elements that includes parties from different countries and the movement of waqf assets between countries. There are always some legal risks in every cross-border waqf activity, and resolving it is more complex due to obstacles such as the differences in law between countries. The Waqf Core Principles (WCP), as one of the latest waqf international best practices, also has no regulation about legal risk mitigation, dispute resolution mechanism, and the role of waqf authorities in resolving disputes. This paper aims to study commonly practiced dispute resolution methods in international transactions that can support cross-border waqf and investigate the role of waqf authority in conflict resolution. This paper uses the qualitative research method. Resources are obtained from Indonesia's and Malaysia's laws, international laws and rules, and some research related to waqf. This paper examines twelve international organisations, five conventions, and at least six countries, resulting in seven possible ways to resolve conflict in cross-border waqf. The data were gathered and interpreted through exploratory and descriptive methods. The finding shows, among others, the importance of contractual clauses on dispute resolution to mitigate legal barriers in resolving cross-border waqf legal disputes. Alternative Dispute Resolution (ADR) is the most efficient method to resolve the conflict and maintain the relationship between parties. Lastly, active participation of the waqf authority as a conciliatory party in resolving cross-border waqf disputes is also crucial. On a practical aspect, this paper’s findings offer dispute resolution options and phases for cross-border waqf.

STREAMLINING THE NOMINATION POLICY IN ESTATE ADMINISTRATION FOR MUSLIMS IN MALAYSIA

Wan Noraini Mohd Salim — 2024-05-31

Nomination is a process whereby a person names someone to receive the benefit from the nominated estate if the person dies. In Malaysia, the effect of nomination clauses differs from one institution to another institution depending on their governing laws. It is observed that some policies on nomination seem to be inconsistent with the fatwas that a nominee is only a trustee. Hence, this study aims to examine the effect of nomination on the nomination-based products. It is significant to clarify the status of the nominee in each nomination-based product whether the nominee receives the benefit of the policy as the beneficiary or as the trustee. This study also aims to identify issues relating to nomination such as the application of hibah ruqba in takaful. In this study, the qualitative research method was adopted by using library research through the legal analysis of primary data, which includes legislation and case law, as well as secondary data such as journal articles, textbooks, and official documents. Several statutes have been identified as the subject of analysis, including the Islamic Financial Services Act 2013, Financial Services Act 2013, and Employees Provident Fund Act 1991. This study finds that a single federal law governing nomination throughout Malaysia is not feasible due to the existence of various entities. Thus, this study recommends that the relevant statutory provisions be revised in order to streamline the nomination policy in its nomination-based products.

CHILD CUSTODY DISPUTES IN THE MALDIVES AND PAKISTANI FAMILY LEGAL SYSTEMS: CHALLENGES AND WAY FORWARD

Mausooma Farooq — 2024-05-31

This article examines the effectiveness of child custody laws in the Maldives as well as Pakistan. Unfortunately, within the family courts, custody of the child is among the many unresolved issues parents choose litigation for, and it often takes months to reach a conclusion. In the family justice system of the Maldives as well as in Pakistan, parents only have the option of sole custody. In cases where the father has sole custody of the child, he may deny the mother visitation rights, and vice versa if the mother has custody. Against this backdrop, this article examines the present approach to child custody matters in the contexts of the Maldives and Pakistan post-family separation. The study aims to ascertain how family courts interpret the concepts of 'welfare of the minor' and 'best interests of the child' within the framework of existing laws. Additionally, it examines whether these courts implement arrangements for shared parenting or joint custody, as observed in various jurisdictions, and evaluates the judges' comprehension of the modern concepts of joint custody or shared parental responsibility in the Maldives and Pakistan. Employing surveys, interviews, and library research methods, this study examines the modern approach to child custody. Specifically, it investigates the concept of "joint custody" or "shared parenting" across different jurisdictions and advocates for its integration into the family justice systems of the Maldives and Pakistan.

RIGHT TO LEGAL REPRESENTATION DURING SUMMARY PROCEEDINGS UNDER THE MILITARY JUSTICE SYSTEM

Haslida Isamail — 2024-05-31

Military justice is essential for maintaining discipline and order in the military. The Federal Constitution of Malaysia safeguards the fundamental right of individuals to be represented by a legal practitioner of their preference through Article 5(3), and Section 255 of the Criminal Procedure Code (Act 593) also provides the right of the accused to be defended before any criminal court. Additionally, Article 8 guarantees everyone equal legal protection. Thus, everyone has the right to legal representation, which is essential. Nonetheless, no provision in the Armed Forces Act 1972, Armed Forces (Court-Martial) Rules of Procedure 1976, and Armed Forces (Summary Jurisdiction) Regulation 1976 guarantees legal representation during summary proceedings. The omission of this provision will be examined through pertinent cases and compared to the United States’ position. This legal research is purely doctrinal, analysing the relevant legal provisions and court rulings. Despite the fact that the Federal Constitution ensures the right to legal representation and equality, this article argues that introducing legal representation during summary proceedings is at the discretion of the commanding officer, subordinate commander, and appropriate superior authority, taking into account the distinct characteristics of such proceedings. This article proposes a need for reform of the current law to allow army personnel to opt for court-martial and to establish an appeal mechanism for the accused.

FROM LEGALITY TO RESPONSIBILITY: CHARTING THE COURSE FOR AI REGULATION IN MALAYSIA

Mohammad Belayet Hossain — 2024-05-31

As Artificial Intelligence (AI) technologies continue to evolve rapidly, Malaysia faces the imperative of establishing a robust regulatory framework to address legal complexities and ensure responsible AI deployment. This paper examines the current landscape of AI legality in Malaysia, analysing existing laws and regulations governing AI applications across various sectors. It identifies key legal challenges, including issues related to data privacy, algorithmic transparency, liability, and ethical considerations. Emphasising the transition from mere legality to ethical responsibility, the paper advocates for a proactive approach in charting the course for AI regulation. The doctrinal research methodology is used in this paper. This paper will first discuss the use of AI in different sectors in Malaysia and then will highlight the various problems associated with it. This study also discusses newly adopted AI regulations by the EU and China, and also the progress of the USA and the UK on AI regulation. It proposes strategies for enacting a forward-looking regulatory framework that integrates ethical guidelines, promotes transparency, fosters collaboration between stakeholders, and establishes mechanisms for accountability. By navigating this trajectory towards responsible AI regulation, Malaysia can unlock the full potential of AI while upholding ethical standards, protecting individual rights, and mitigating risks associated with AI technologies.