Authors:Sonia Widya Febriana Pages: 1 - 25 Abstract: Implementing the right of peaceful assembly in the midst of a pandemic seems dangerous, especially when the disease is highly infectious. The United Nations Human Rights Committee then adopted General Comment No. 37 which explains the scope of protection of Article 21 of the International Covenant on Civil and Political Rights 1966. This writing is normative research on the interpretation made by the Human Rights Committee and assessing the sufficiency of the said interpretation in protecting the freedom of assembly in the midst of public health emergencies. It is found that the Human Rights Committee has conducted a thorough method in interpreting the protective scope of Article 21 of the ICCPR, whereas the General Comment No. 37 provides a vast protective scope, including a thorough guideline on how to conduct the freedom of assembly in times of public health emergency. PubDate: 2021-12-23 DOI: 10.31436/iiumlj.v29i2.599 Issue No:Vol. 29, No. 2 (2021)
Authors:Mahyuddin Daud Pages: 27 - 54 Abstract: The spread of fake news on COVID-19 is causing public unrest and suspicion among citizens which is a challenge for countries facing the pandemic. The misinformation or disinformation which stems from uncertainties, unrest, and anxiety because of movement control order procedures, financial and economic hardship caused wrong information to spread like fire. Often referred to as ‘info-demic’, it becomes a second source of virulent information that requires arresting just like the pandemic itself. Controlling fake news in a pandemic is a daunting problem that slaps Internet regulation on its face. On the Internet, lies spread faster than the truth, and correcting this misinformation is a tonne of work. In this paper, we examine Internet self- and co-regulatory approaches in selected jurisdictions to reduce the impact of fake news on governments, industry, and private actors. Through a qualitative method and doctrinal content analysis, this article examines the various approaches adopted in arresting fake news. In the first section, we analysed specific legislation enacted by parliaments that criminalised the acts of disseminating and publishing fake news. In the second section, we found efforts to impose civil and criminal liability on platform providers to monitor online content. In the final section, we analysed self- and co-regulatory efforts to introduce online fact-checking portals and awareness campaigns. This research argues that the Internet self-regulation system in Malaysia is not bringing the desired result i.e., maintaining peace and security of the nation. Considering the impact of dangerous misinformation on society, more so in a global emergency like the present COVID-19 pandemic, it is submitted that co-regulation is more suitable if the social, moral, and cultural fabric of the society is to be maintained. PubDate: 2021-12-23 DOI: 10.31436/iiumlj.v29i2.539 Issue No:Vol. 29, No. 2 (2021)
Authors:Nahda Anisa Rahma Pages: 55 - 84 Abstract: Since its enforcement in 1970, it is evident that the negotiations process towards nuclear disarmament under the Nuclear Non-Proliferation Treaty (NPT) has encountered stagnation. This fact led to the inception of the Treaty on the Prohibition of nuclear weapons (TPNW) which possesses a distinct characteristic of NPT. TPNW utilizes a more digestible humanitarian approach, which emphasized the catastrophic impacts of possessing nuclear weapons, rather than the complex state-security approach. This study aims to primarily provide an in-depth understanding regarding the shifting regime from NPT to TPNW and nuclear disarmament in general. The author conducts the research by using the literature research method, and thereafter analyzes the relevance and employs the arguments contained in the literature critically. The research shows that the traditional paradigm in NPT is insufficient to achieve the goal of complete nuclear disarmament, as it only focuses on the interest and security of the states. Thus delegitimizing the existence of public participation, which is important to put pressure to mobilize the political will of the state. This article also shows the possible obstacles that TPNW might face during its upcoming implementation. PubDate: 2021-12-23 DOI: 10.31436/iiumlj.v29i2.598 Issue No:Vol. 29, No. 2 (2021)
Authors:Hamza Salman, Noor Shuhadawati Binti Mohamad Amin Pages: 85 - 113 Abstract: The Israeli occupation of Palestine has triggered several forms of Palestinian resistance, resulting in the detainment of Palestinians through Israel systematic policies which destroy the will of the Palestinians. This has made the issue of prisoners one of the most important concerns that the Palestinians continue to endure in their daily lives. Therefore, this study aims to clarify the role of international humanitarian law (IHL) in protecting prisoners. It also discusses the rights granted to prisoners by international treaties and conventions and Israel’s application of the rules of IHL to Palestinian prisoners. This research is based on doctrinal and qualitative methods using the sources of IHL about prisoners’ rights. This study also discusses the violations committed by the Israeli occupation against Palestinian prisoners, which are the inhuman treatment they are subjected to, and the passage of a group of laws that violate the rights of Palestinian prisoners. The study concludes that Israel denies Palestinians the rights as prisoners of war, describing them as illegal combatants, and claims that the convention does not apply to the occupied Palestinian territories although IHL under the Geneva Convention includes members of the resistance and organised armed forces. As a result, prisoners from the Palestinian resistance can be considered prisoners of war. PubDate: 2021-12-23 DOI: 10.31436/iiumlj.v29i2.565 Issue No:Vol. 29, No. 2 (2021)
Authors:Abdul Ghafur Hamid, Mohd Hisham Mohd Kamal, Muhannad Munir Lallmahamood, Areej Torla Pages: 115 - 145 Abstract: The doctrine of superior responsibility has been embedded in Article 28 of the Rome Statute of the International Criminal Court, which enunciates the responsibility of both military commanders and civilian superiors. Although constitutional monarchs are civilians entrusted with the position of commanders in chief, there are States that opposed accession to the Rome Statute on the simple ground that their respective monarchs could be indicted and punished under the Rome Statute. The main objective of this paper, therefore, is to examine whether constitutional monarchs could be responsible under the doctrine of superior responsibility. The paper focuses on the analysis of the elements of superior responsibility by referring to the authoritative commentaries of Article 28 and constitutional practices of three selected constitutional monarchies: the United Kingdom, Japan, and Malaysia. The paper finds that constitutional monarchs could not be held responsible because they have to act on the advice of the government and do not possess the effective and operational control over the armed forces as required under the Rome statute. PubDate: 2021-12-23 DOI: 10.31436/iiumlj.v29i2.670 Issue No:Vol. 29, No. 2 (2021)
Authors:Sharifa Sayma Rahman Pages: 147 - 170 Abstract: Different classes of people have raised moral objections on a number of times against granting patents on living organisms. There has been a recent focus on patents partly because the corporate world is only concerned with economic returns and the market prospect of a genetic product. The purpose of this article is to revisit the debate on the patent of genetic engineering technologies and provide partial recommendations on rationalising patent protection while mitigating moral arguments. This article re-examines the intellectual property frameworks as well as case laws regarding biological materials in selected countries i.e., Europe, the United States of America, Australia, Malaysia, and under international agreements such as the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). This article is based on primary as well as secondary materials that have been written on the patent of life forms and genetic research. There is an inconsistency between philosophical principles and the implementation of biotechnology patents due to the existing economic, political, and ideological conditions among countries, along with existing divergences in the field of genetically engineered technologies. Hence, during such circumstances, the most coherent position is to proceed with vigilance as it is not possible to shut down bio-industrialisation. One such vigilant pathway in the presence of contemporary evidence to minimise commercialisation of life science creations. Patents of genetically engineered products should be strictly monitored to fulfil commitment towards international human rights, which is to provide reasonably priced healthcare and medical treatment. PubDate: 2021-12-23 DOI: 10.31436/iiumlj.v29i2.568 Issue No:Vol. 29, No. 2 (2021)
Authors:Mushera Ambaras Khan, Farheen Baig Sardar Baig, Haniza Rais Pages: 171 - 197 Abstract: In recent years, claims for damages for deliberately or negligently inflicted psychiatric illness have succeeded against employers in jurisdictions outside Malaysia. In the case of Mount Isa Mines v Pusey, the court decided that an employer’s duty of care towards the employees is not limited to cases of physical injury but also extended to cases of psychiatric injury. In order to claim damages for psychiatric injury, the law of torts requires the plaintiff to prove two elements: namely, reasonable foreseeability and proximity. This paper examines on the two elements as required under the law in the context of psychiatric illness in the workplace. The paper analyses cases from the UK, Malaysia and Australia, elaborating on how an employee can successfully bring an action against his/her employer for his/her psychiatric illness suffered at the workplace. The author employs doctrinal analysis from primary and secondary legal sources in arriving at the solutions to the above problem. This paper will significantly contribute to the existing literature by discussing the challenges faced by an employee in proving the conditions required by the law and its solutions to ensure that employee who suffered psychiatric illness or injury in the workplace has a redress under the law of negligence. This paper also considers the scenario from an Islamic perspective in order to shed light on the seriousness of the welfare of employee guaranteed by the religion. Having shown how divine revelation makes it incumbent on an employer to honour and respect his worker, and treat him in kindness, it will be further shown how two Court of Appeal decisions have paved the way to find employers negligent for causing distress to their employees’ mental health. This paper, thus illustrates yet another fine example of harmonisation between the two systems of law, that can come together to achieve the same end. PubDate: 2021-12-23 DOI: 10.31436/iiumlj.v29i2.579 Issue No:Vol. 29, No. 2 (2021)
Authors:Noor Shuhadawati Binti Mohamad Amin, Ashgar Ali Ali Mohamed, Areej Torla Pages: 199 - 220 Abstract: The retirement benefits scheme is one of the social security protections accorded to employees around the world. In Malaysia, the retirement benefits scheme is in the form of the contribution made by both employer and employee at a specified rate based on the employee’s monthly wages and such contribution will be credited into the employee’s fund. An employee is allowed to withdraw money from the fund when he or she reaches retirement age. The doctrinal study found that the retirement benefits scheme in Malaysia differs greatly between the local employees and migrant workers. Although migrant workers are allowed to contribute to the retirement benefits scheme known as Employees Provident Fund, their contribution is voluntary, and not done compulsorily. The contribution of the employer is capped at only RM5 per month, which is very low. It is exacerbated by the fact that the contribution in the fund is not transferable as the Employees Provident Fund Act does not provide any provision to transfer the retirement benefit to another scheme in another country. It is hoped that these challenges faced by migrant workers will be given due consideration by the government to allow the migrant workers to have adequate social security protection by reforming the current retirement benefit statute or introducing a new retirement benefit statute that only protects the migrant workers. PubDate: 2021-12-23 DOI: 10.31436/iiumlj.v29i2.573 Issue No:Vol. 29, No. 2 (2021)
Authors:Tan Wai Kit Pages: 221 - 269 Abstract: Small and Medium Enterprises (SMEs) and start-ups have consistently contributed to a country’s tax revenue, technology advancement, and innovation, job creation as well as economic outputs. However, they are facing great challenges or setbacks in securing funding from external sources. To overcome the fundraising issues or financing lacuna, many entrepreneurs have resorted to crowdfunding as an alternative source of their equity or debt financing. Crowdfunding, being a significant aspect of the recent fintech innovation and digital disruption, has been put under the spotlight and received high expectations from all stakeholders to be an effective solution to SMEs and start-ups. This article would be focusing on crowdfunding with financial returns, namely, equity crowdfunding (ECF) and crowdlending/peer-to-peer lending (P2P). The research methodology employed by this article is primarily based on the literature review of various legislations, scholarly articles, research papers, government policies, books, and other publications concerning the ECF and P2P from different disciplines. At the end of this article, the author opined that crowdfunding could be a useful alternative financing method for SMEs and start-ups in Malaysia as it helps the capital formation and bridges the financing gaps for them. Countless benefits could also be offered to the society and economy at large with the proper crowdfunding regulations in place. Upon reviewing the Guidelines on Recognised Markets issued by the Securities Commission Malaysia (Guidelines), the author argues that the Guidelines is a carefully crafted and balanced regulation, albeit there is room for improvement. PubDate: 2021-12-23 DOI: 10.31436/iiumlj.v29i2.614 Issue No:Vol. 29, No. 2 (2021)
Authors:Mahyuddin Daud, Norlaili Mat Isa Pages: 271 - 298 Abstract: Peer-to-Peer Accommodation services (P2PA) are mushrooming worldwide due to the expansion of digital services and Internet access. Since P2PA services operate fully online, small establishments utilise disruptive technology and surpass traditional hoteliers by surprise. In the first part of this article, we examine the problems caused by P2PA for ‘playing on an uneven field’, avoiding necessary taxes, skipping regulatory and safety requirements, and causing loss of tranquillity to the neighbourhood. Due to these problems, a proposal was moved by the government to regulate P2PA in Malaysia via a self-regulatory guideline, as analysed in the second part of the article. However, due to its non-binding status, the proposal will arguably lead to irregularities in regulatory mechanisms at the state level when enforced. P2PA hosts were asked to comply with regulatory requirements similar to hoteliers, but the platform providers have arguably avoided any P2PA related liability nor responsibility as they operate offshore. Applying qualitative research methods via content analysis and semi-structured interviews, the article concludes by proposing a legal framework to regulate the P2PA platform providers, including hosts and agents, which is deemed timely and necessary for Malaysia to safeguard the interests of both tourists and stakeholders. PubDate: 2021-12-23 DOI: 10.31436/iiumlj.v29i2.647 Issue No:Vol. 29, No. 2 (2021)
Authors:Salehuddin Md. Dahlan, Nor Asiah Mohamad, Nuarrual Hilal Md Dahlan Pages: 299 - 329 Abstract: This paper analyses the legal and historical development of waqf made by Sultan Idris Murshidul' adzam Shah in Perak (1849 to 1916). There are many untraceable, lost, and perished waqfs in Malaysia. However, Sultan Idris’s waqf is an exception which still exists since its establishment in 1917. As such, this research intends to explore its sustainability factors. The research methodology used is the doctrinal and non-doctrinal research methods. The doctrinal method is used to analyse the enactments, government gazettes, audit reports, journal articles, and history books. Meanwhile, the non-doctrinal legal method, namely semi-structured interview, clarifies findings and information gathered from various documents. The research is essential as there is a lack of comprehensive research done on waqf made by the Sultans or the Head of State in Malaysia. The researcher finds that the waqf was an established under written legal instrument; the waqf by Sultan Idris was made based on the English law of trust, but the spirit and principles of waqf to permanently benefit the beneficiaries remain intact; the appointment of the Sultan's descendants as the trustees alongside a committee proved to be crucial for the sustainability of the waqf; and there was check and balance process through legal provision. This research provides a clearer picture of waqf practice before the establishment of Perak's State Islamic Religious Council and evidenced the Sultan's contribution towards developing and protecting Islam. PubDate: 2021-12-23 DOI: 10.31436/iiumlj.v29i2.629 Issue No:Vol. 29, No. 2 (2021)
Authors:Norhabib Bin Suod Sumndad Barodi Pages: 331 - 362 Abstract: This article provides an overview of the Shari’ah legal profession in the Philippines by scrutinising its status quo, identifying the indications of its future, and drawing some insights from its comparison to Malaysia’s Syarie legal profession. The recognition of the Shari’ah legal profession in the secular state of the Philippines is traceable to the Code of Muslim Personal Laws of the Philippines (Muslim Code), which mandated the creation of Shari’ah courts and the institutionalisation of the Shari’ah bar examinations whose passers are conferred the title of ‘Counselor-at-Law’. In view of the recent enactment of the Bangsamoro Organic Law (Republic Act No. 11054), this article will also highlight the implications of the justice system under this organic law on existing Philippine’s Shari’ah Courts and on the Shari’ah legal profession as a whole. PubDate: 2021-12-23 DOI: 10.31436/iiumlj.v29i2.563 Issue No:Vol. 29, No. 2 (2021)
Authors:Nadhratul Wardah Salman, Md Sohel Rana, Saroja Dhanapal Pages: 363 - 386 Abstract: The rights of arrested persons during arrests and after arrests are significantly important because the act of arrest restricts persons’ rights to liberty that are protected by the laws of all countries including Bangladesh, India, and the United Kingdom (UK). These restrictions have raised several concerns over the years. While compliance with the laws on arrest is mandatory, the actual implementation of these laws is still questionable. There are obvious gaps between the provisions of the existing laws and the actual practice. Past research also suggests that the legal structure of arrest and post-arrest in Bangladesh should be revised in comparison with the criminal justice systems of other developed countries where rights of those arrested are safeguarded. However, past research has not compared other jurisdictions, and neither is there any research conducted on best practices of other jurisdictions. As such, this article analyses the various aspects of arrest and post-arrest safeguards that exist in all the three jurisdictions, and identifies good practices to safeguard the arrested person more effectively. The objective of identifying good practices from India and the UK is to use them as a paradigm for the criminal justice system of Bangladesh. This is done through the application of a qualitative research methodology using content analysis as the approach to analyse primary and secondary sources. The comparison includes discussion on the right to know the reason of arrest, right to be brought to court, right to be free from torture, right against self-incrimination, right to be medically examined and the remedial aspect of ‘habeas corpus’. These rights that are significantly related to the rights to life and liberty, fair trial and to be presumed innocent until proven guilty. The findings show that the UK’s legal framework is far better than the ones in India and Bangladesh. It is suggested that the protection provisions enshrined in the existing criminal justice system and the current legal structure should play an important role through specific court rulings. Further, it is asserted that the police department should take accountability by incorporating the necessary changes into the existing legal structure to ensure justice prevails. The paper ends with a recommendation that monetary compensation, and a physical exemplary punishment should be imposed to ensure the safeguards of individual, both at the time of arrest and post-arrest are upheld. PubDate: 2021-12-23 DOI: 10.31436/iiumlj.v29i2.645 Issue No:Vol. 29, No. 2 (2021)
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