IIUM Law Journal

JUDICIAL INTEGRITY IN STRENGTHENING THE NATION

Tun Tengku Maimun Tuan Mat — 2023-12-11

Speech delivered at the Tan Sri Harun M Hashim Memorial Lecture 2023 on “Judicial Integrity in Strenghtening the Nation”, International Islamic University of Malaysia, 17th May 2023.

ACHIEVING JUSTICE THROUGH IMPLEMENTATION OF SHARIAH: CHALLENGES AND THE WAY FORWARD

Haji Mohd Na'im Haji Mokhtar — 2023-12-11

Speech delivered at the 19^th Professor Emeritus Ahmad Ibrahim Memorial Lecture 2023, Muhammad Abdul-Rauf Building, International Islamic University Malaysia, 24^th July 2023.

THE CONSTITUTION AND HUMAN RIGHTS: REVISITING THE CONTRIBUTION OF TAN SRI HARUN M. HASHIM

Farid Sufian Shuaib — 2023-12-11

This article looks at the importance of the Constitution in providing a framework of government in a country to ensure the rule of law prevails and to avoid the masses from being the mere tools of the capricious elite. The judiciary being the arbiter of dispute plays an indispensable role in bringing life to the black letters of the written Constitution. In this regard, the article tentatively looks at the contribution of a former Supreme Court Judge, Tan Sri Harun M. Hashim on his approach to interpreting fundamental liberties and the interactions between the different organs of government. The distillation of approaches of one of the prominent judges of Malaysia may better inform the development of the law. The article also looks at his contribution in raising awareness on human rights during his tenure as the Vice-Chairman of SUHAKAM. The article adopts a doctrinal method by probing the Federal Constitution, related statutes and case law. Secondary sources including journal articles are examined to provide reviews and observations regarding the related legal areas and the development of the law. The article concludes with the finding of the continuing influence of the judgment and writings of Tan Sri Harun M. Hashim in different areas of law including human rights, contempt of courts and constitutional law.

HARMONISING INTERNATIONAL LEGAL FRAMEWORKS AND SHARIAH PRINCIPLES IN THE CONTEXT OF MEDICAL TOURISM: AN ANALYSIS

Noor Shuhadawati Mohamad Amin — 2023-12-11

Shariah-compliant medical tourism has grown into a specialised sector of the global medical tourism market that serves patients looking for medical care that complies with Islamic principles. For the sake of ensuring patient safety, ethical considerations, and the harmonisation of practises across borders, the role of international law in governing this special type of medical tourism is essential. The study first establishes a connection between the objectives of the Shariah (Islamic law) together with its salient principles and health in Islam. In this context, it is apparent that the relevant Shariah objectives and principles have a great influence on the delivery of healthcare services. The study, which is doctrinal in nature then explores the international law and how it relates to shariah-compliant medical tourism. Further, the study discusses universal values, human rights, and the protection of patient rights as they are stated in the international conventions. The purpose of this study is to critically analyse the relationship between the Shariah principles in the context of medical tourism with the standards prescribed in the international legal framework. From the study, it is obvious that the international legal standards can accommodate and respect Shariah requirements and has the potential to attract not only Muslims but also non-Muslims patients.

INCORPORATING THE ROME STATUTE INTO NATIONAL LAW: LESSONS FOR MALAYSIA

Abdul Ghafur Hamid@ Khin Maung Sein — 2023-12-11

Although the former Malaysian government, due to political pressure, decided not to proceed with accession to the Rome Statute, this is not the end of the game. To join the Rome Statute had been in principle accepted by preceding governments and has been the ardent hope of the civil society. How to incorporate the Rome Statute into the Malaysian legal system has been deliberated among the Malaysian government (including the Attorney General’s Chambers and the Ministry of Foreign Affairs), Malaysian Parliamentarians, and civil society since a long time ago. As adopting the Rome Statute is in the best interest of humanity as a whole, the idea will definitely revive at any time in the future when the political climate is favourable. The objectives of the present paper, therefore, are to rebut the main objections against the Rome Statute and to identify the best way of incorporating the Rome Statute into the Malaysian law once Malaysia decides to accede to it. This is a doctrinal legal research supplemented by a comparative methodology, focusing on an analysis of key provisions of the Rome Statute and the Malaysian laws that could be affected, and a comparison between the practices of selected dualist and monist countries. The paper finds that Malaysia, as a dualist State, should opt for applying the single comprehensive enactment modality rather than the multiple one. It is in the best interest of Malaysia for clarity and effectiveness purposes. It concludes with recommendations for the proposed draft implementing legislation, together with suggestions for consequential amendments.

SHOW ME THE MONEY! UNEXPLAINED WEALTH AND CIVIL FORFEITURE IN MALAYSIA

Nurazlina Abdul Raof — 2023-12-11

Unlike criminal forfeiture, civil forfeiture allows corrupt assets recovery without the necessity of proving the corruption act. In Malaysia, a combination of criminal and civil mechanisms for recovering corrupt assets is available. Civil forfeiture removes capital for future corrupt activity, deprives a person of enrichment due to the corruption, escalates the cost of perpetrating corruption and improves the probability of detection and imprisonment. Still, there are critiques against this technique globally. Using the doctrinal approach, this study analyses the application and sufficiency of Section 41 of the Malaysian Anti-Corruption Commission Act 2009 and Section 56 of the Anti-Money Laundering, Anti-Terrorism Financing And Proceeds of Unlawful Activities Act 2001 in recovering corrupt assets in Malaysia. The legal framework, its benefits and drawbacks are investigated. The study takes a comparative approach by looking at the practice in the United Kingdom for benchmarking and lessons to be learned. The study discovers constraints in the present civil forfeiture laws, which prevented the law enforcers from successfully meeting the burden of proof. Hence, reform suggestions for its enhancement are made via the unexplained wealth order (UWO) route. The UWO can potentially accelerate the process of recovering corrupt assets as it allows a court order requiring a person to provide details of the origin of specific assets. The assets could be recovered through the subsequent civil forfeiture proceedings. The study outcome may assist the government, policymakers and stakeholders in understanding the UWO concept in addressing corruption offences in Malaysia.

INTERMEDIARY’S LIABILITY: TOWARDS A SUSTAINABLE ARTIFICIAL INTELLIGENCE-BASED CONTENT MODERATION IN MALAYSIA

Mahyuddin Daud — 2023-12-11

Intermediaries enjoy a ‘safe harbour’ from civil or criminal liability should they host illegal and harmful third-party online content, subject to requirements from national laws. The line between immunity and liability becomes hazy when intermediaries appear to assume the role of content creators, hence risk being characterised as publishers. The paper analyses whether such liability may be diminished if intermediaries adopt an artificial intelligence-based content moderation system. Through comparative case analyses of Mkini, Delfi, Bunt and Godfrey, the research questioned the relevance of the legal defence granted in the Communications and Multimedia Act 1998 and the Content Code. The article analysed the Federal Court’s finding of liability for Mkini and asked whether it signals the right way forward that may ignore the fundamental right to express opinion of public interest. Despite the advances in artificial intelligence-based content moderation, it remains to be seen if algorithms can easily contain illegal and harmful content.

ENERGY EFFICIENCY MANAGEMENT TOWARDS SUSTAINABLE DEVELOPMENT: THE NEED FOR AN ENERGY EFFICIENCY LEGAL FRAMEWORK

Farahdilah Ghazali — 2023-12-11

Issues on the ever-growing demand for energy, limited fossil fuels, difficulties in obtaining viable, sustainable energy for sustainable development, and adverse impacts on global climate change have driven the international community towards the use of cleaner and more sustainable energy sources. In addition to the sustained availability and utilisation of renewable energy sources, many countries have developed and implemented energy policies to address the above issues as well as to conserve energy in line with Goal 7 of the Sustainable Development Goals (SDGs). This doctrinal analysis is performed to identify the extent to which energy efficiency and conservation imperatives in Malaysia have been implemented and explore the need to enact a legal framework for energy efficiency in this country. The aim of this paper is to detail the prospects of energy efficiency in Malaysia and discuss efforts made to enable energy efficiency practices with a view toward the sustainability of energy supply for future use. The outcomes of this study demonstrate that the implementation of energy efficiency in the country is consistent with one of the core agenda items for the economies to progress as recommended by the United Nations General Assembly through SDG 7. Nevertheless, without specific legislation for the implementation of energy efficiency, efforts to strengthen the management and implementation of energy efficiency in Malaysia will not be possible.

SMALL ESTATES (DISTRIBUTION) ACT 1955: ANALYSIS ON THE 2022 AMENDMENT AND ITS EFFECTS OVER THE INHERITANCE MANAGEMENT

Muhammad Amrullah Drs Nasrul — 2023-12-11

This study aims to analyse the amendments to the Small Estates (Distribution) Act 1955 by looking at each amendment and identifying its impact on other relevant administrative bodies. This qualitative study involved library-based research in which the authors reviewed relevant literature for the purpose of data collection, namely newspapers, textbooks, conference proceedings, case laws, seminar papers, and journal articles. The amendment shows some overlap with the jurisdiction of other administrative bodies, specifically the Amanah Raya Berhad (ARB). The paper suggested that further amendments be made to other administrative bodies, namely the Civil High Court and ARB in order to prevent such overlapping.

A ROUTINE ACTIVITY APPROACH TO UNDERSTANDING THE REASONS FOR TECHNOLOGY-FACILITATED HARASSMENT AGAINST WOMEN IN INDIA

Samina Khan — 2023-12-11

The rapid increase in technologies is forcing more people to be online, which is offering perpetrators to commit technology-facilitated harassment (TFH). This paper explores various reasons associated with the rise of TFH cases against women in India by employing routine activity theory (RAT). A conceptual framework is proposed to understand the reasons for technology facilitated- harassment against women (TFHW) in India. This paper adopted a qualitative methodology and observed that accessibility, anonymity, anger, revenge, and political agenda were the vital sources of motivation among perpetrators. The sharing of personal data, underreporting, lack of awareness of laws, negligence, less awareness of technology, gender perception in using the technology, and patriarchal society made women in India suitable targets. Lastly, a lack of effective laws, careless enforcement agencies, and no privacy settings materialised in the absence of a capable guardian. Thus, this paper provides a new perspective on RAT by utilising it on TFHW in India. Further, it will serve as a platform to locate how TFH incidents can be minimised by addressing the reasons in the context of a motivated offender, a suitable target, and a capable guardian.

DISPUTE SETTLEMENT MECHANISMS UNDER THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA 1982: THE WAY FORWARD FOR MALDIVES

Aishath Ruhsha Nasheed — 2023-12-11

The maritime boundary delimitation judgment by the International Tribunal for the Law of the Sea between Mauritius and the Maldives was the first Maldivian dispute settled at an international court or tribunal. Regrettably, misinterpretation and misinformation regarding international laws and the Maldivian domestic laws related to the dispute became prevalent among the Maldivian community. One of the core concerns that need to be addressed is how Maldives got subjected to a legally binding dispute settlement mechanism concerning a dispute that was initially regarding the sovereignty over the Chagos Archipelago between two other States, namely: Mauritius and the United Kingdom. Additionally, it is important to determine whether Maldives has any other legal means to safeguard its maritime zones from future maritime disputes. The main objective of this paper is to explore the dispute settlement mechanisms under Part XV of the United Nations Convention on the Law of the Sea (LOSC) and determine how these provisions can be utilised to safeguard the Maldivian maritime zones. This research is primarily a doctrinal legal research. Firstly, the article outlines the provisions under Part XV of the LOSC whilst exploring its drafting history. Next, the article analyses the optional exception on maritime delimitation under LOSC Article 298(1)(a) and its significance to the Maldivian situation. It suggests that considering the undelimited outer continental shelves of Maldives, Maldives should consider declaring an optional exception under LOSC Article 298(1)(a). The article concludes that optional declarations serve as safeguards against premature and costly dispute resolution.

SUSTAINABILITY OF BUSINESSES VIA SHARIAH-COMPLIANT FRAMEWORK: ANALYSIS OF SHARIAH PRINCIPLES ON CORPORATION

Nazri Ramli — 2023-12-11

Corporation under common law lies within the doctrine of corporate personality which entails that corporation is recognised as a separate legal person distinct from its constituents. As a new form of business vehicle that supports sustainability agenda and with the recent enormous and instant developments in the Shariah compliance businesses sector, the majority of contemporary Muslim scholars have discussed and recognised it through the concept of sharikah. Nonetheless, such recognition is contentious as sharikah is a contractual business entity inseparable from its partners. Furthermore, accepting this corporation under the sharikah without fully dissecting its legal attributes and the implications of running such a business entity not only contravenes both the legal principles of corporation and Islamic principles of sharikah, but also creates doubt as to the legitimacy of a Shariah-compliant business registered under this legal concept. This article analyses the legal concept of corporation under the common law and compares it with the concept of sharikah under Shariah. The discussion reveals that the recognition of corporation by the contemporary Muslim scholars under the sharikah concept is misleading and raised legal complications under the company law due to great differences in terms of nature, concept, and structures. This article adopts doctrinal and comparative analysis research methodology. The article concludes that corporation may be recognised under the Shariah subject with certain modifications to the former’s legal structures to be compatible with the Islamic principles of sharikah.

DEATH PENALTY AND RIDDAH: A CRITICAL EVALUATION TOWARDS THE CLAIM OF A JURISTIC IJMĀ‘

Fajri Matahati Muhammadin — 2023-12-11

Contemporary academics and ‘ulama debate back and forth regarding whether Islam really supports the execution of those who have apostatised away from Islam (i.e. committed riddah). There is already numerous research dedicated to the interpretation of verses of the Qur’an and aḥadīth relevant to riddah, and what legal rulings can be derived from them. What often alludes contemporary academics is what some ‘ulama call the “third primary source of Islamic law”, namely ijmā‘. Claims of and counterclaims against ijmā‘ regarding executing the murtadin have often been cited in passing, somehow the latter more lengthily explained. What is missing, however, is a comprehensive analysis of these ijmā‘ claims and counterclaims and this is what our research does. Through literature research using comparative fiqh analysis, we critically examine whether an ijmā‘ has been achieved during the era of the Salaf al-Ṣāliḥ (pious predecessors) then the classical madhāhib regarding the matter of murtadin execution, considering also potential exceptions. Finding the affirmative, we critically analyse what to make of the contemporary dissenting opinions in navigating the present-day challenges to implement Islamic criminal law.

APPLICATION OF MAINTENANCE DURING THE WAITING PERIOD ('IDDA'): A PERSPECTIVE FROM OTTOMAN AND TURKISH CIVIL LAW

Ahmet Ekşi — 2023-12-11

This study examines the Islamic perspective on alimony or maintenance during 'idda, which is the waiting time a divorced woman must observe before remarrying. The study will also evaluate Ottoman law's application to a divorced woman's maintenance during the waiting time by analysing court records from its six-century history. Finally, the study will explain how poverty alimony practices are handled in Turkish law. This study used a mixed-methods research design involving qualitative and quantitative data collection and analysis techniques. The study will begin with a literature review of Islamic, Ottoman, and Turkish law to establish a theoretical framework for the research. The literature review will also provide an overview of the existing scholarship on the topic, identify gaps in the literature, and inform the research questions. The study used a purposive sampling technique to select court records from the Ottoman era relevant to the research questions. The chosen court records will be analysed using content analysis to identify the legal principles that guided the court's decision-making on alimony or maintenance during the 'idda. The study aims to comprehensively analyse the Islamic perspective on alimony or maintenance during the `idda period and evaluate the Ottoman law's application to a divorced woman's maintenance during the waiting time. The study also explains how poverty alimony practices are handled in Turkish law. The study's findings will contribute to the existing literature on Islamic law, Ottoman law, and Turkish law and provide insights for policymakers, legal experts, and women who have gone through the divorce process in Turkey.

AN ANALYSIS OF THE LEGAL IMPLICATIONS OF MALAKI V. PEOPLE OF THE PHILIPPINES ON POLYGYNY UNDER THE CODE OF MUSLIM PERSONAL LAWS OF THE PHILIPPINES

Norhabib Bin Suod S. Barodi — 2023-12-11

This article, using case analysis, examines the legal implications of polygyny under the Code of Muslim Personal Laws of the Philippines of the case of Francis D. Malaki and Jacqueline Mae Salanatin-Malaki v. People of the Philippines, G.R. No. 221075, November 15, 2021, which not only affirmed the settled doctrine - that the non-Muslim male party to a subsisting civil marriage who converts to Islam and subsequently marries another woman in accordance with the Code of Muslim Personal Laws of the Philippines commits the crime of bigamy - but also suggests a novel proposition that a Muslim husband who contracts a subsequent marriage without the consent of the wife or permission of the Shari’ah court in case of wife’s refusal to consent is also bigamous; therefore, the subsequent marriage is void from the beginning under the Family Code of the Philippines and penalised as a crime under the Revised Penal Code of the Philippines. After analysing the case, this article concludes that the subsequent marriage of a Muslim husband who has subsisting Muslim marriage should not constitute the crime of bigamy, as there is no legal framework in the Qur’an or Sunnah which requires the consent of the wife for the Muslim husband to contract a subsequent marriage. It further concludes that this novel doctrine should be treated as an obiter dictum to avoid its practical effect of criminalising what the Qur’an and Sunnah have made legal and permissible. Nonetheless, existing legal provisions against abuse of the privilege to contract subsequent marriage may be enhanced.

EXPANDING THE BOUNDARIES OF JURISPRUDENCE IN THE ERA OF TECHNOLOGICAL ADVANCEMENTS

Asif Khan — 2023-12-11

In the current era of advanced technology, the convergence of artificial intelligence (AI) and big data presents intricate challenges in the technical and doctrinal aspects of law and the fundamental principles of jurisprudence. Addressing this challenge entails three potential approaches: reevaluating the independent status of specific foundational categories, reconfiguring the interpretation of such categories, or steadfastly defending and enhancing our understanding of specific classifications. The reconstruction of the essential concept of "law" remains uncertain and necessitates further deliberation. Although the new technological era has not introduced entirely novel jurisprudential dilemmas, it has reconsidered existing perspectives. Swiftly and effectively responding to these challenges becomes paramount in seizing fresh opportunities for the independent advancement of Chinese jurisprudence. The purpose of the study is to push the boundaries of jurisprudence by exploring and addressing legal issues arising in the era of technological advancements. The qualitative research methodology has been applied in this article.