Universiti Putra Malaysia
Download Latest Complete Journal - JSSH Vol. 25 (S) Oct. 2017
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1
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(Downloads: 13)
Abstract (Viewed: 1)In the wake of medical errors and potential lawsuits, apologies made by medical practitioners to their patients have the ability to defuse prospects of litigation. Often, when things go wrong, patients want to know what actually happened, why it happened and be assured that it will not happen again. At this juncture, apologies which are 'statements acknowledging error and its consequences, including accepting responsibilities and communication of regrets' can reduce the anger as well as patient desire to retaliate. Nevertheless, apologies may also have the potential to be seen as admissions of guilt by the medical practitioner, thus, exposing him to risks of impending lawsuits. In weighing the drawbacks of apologies against their benefits, several countries have enacted 'apology laws' that mandate open disclosure of medical errors but shield those who apologise from legal liability. This paper seeks to discuss the role of apologies in the resolution of medical disputes and the barriers faced by medical practitioners in subjecting themselves to acts of open disclosure after a mishap. Nevertheless, the inculcation of a sustainable culture of honesty, openness and respect is fundamental to improve patient safety and public trust in the healthcare system.Apology, apology law, medical error, negligence, open disclosure
2
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(Downloads: 9)
Abstract (Viewed: 1)An important measure of shareholders' power is their ability to initiate and approve proposals. However, in many countries which have transplanted or inherited the Anglo-Saxon model of governance, shareholders intending to present their proposals to a general meeting often face a significant legal barrier due to the division of power doctrine. This article examines recent decisions within the Commonwealth where attempts have been made to reconfigure the division of power which confers to the board the power to decide on management matters. The article adopts a qualitative research method using case study of decisions in several Commonwealth countries where shareholders have attempted to present proposals on matters which ordinarily fall within the board's jurisdiction. Despite the strong opposition that shareholders face to reconfigure the division of power there is an increasing trend of shareholder- initiated proposals within the Commonwealth, reflecting changing community expectations. Board, Commonwealth, division of power, reconfigure, shareholders
3
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(Downloads: 3)
Abstract (Viewed: 1)Internet Service Providers (ISPs) are the gate keepers of internet and free flow of information and expression. The ISPs can also play a strategic role in policing the Internet from copyright infringing materials. As gatekeepers, they can block access and force others to identify the origin of the materials making them the best organisation to take action on the internet materials. The abandoned Trans-Pacific Partnership Agreement (TPPA) between Malaysia, United States of America (US) and another 10 countries in Asia and Pacific Region contains obligations that mandates ISPs to expeditiously remove or disable access to alleged infringing material upon acquiring actual or even with constructive knowledge of the infringement. Although TPPA is theoretically dead after the withdrawal of the US, it is still pertinent to consider its provision as it is the first global standards on ISP liabilities though negotiated under a free trade agreement. This paper examines the obligations under Malaysian Copyright Act 1987 and compare them with TPPA provisions on ISPs. It concludes that unless there is latent defect with the Malaysian notice and take down procedure, there is no compelling urgency for Malaysia to revise her procedure.Copyright infringement, Internet Service Providers (IPS), Internet policing, Trans-Pacific Partnership Agreement (TPPA)
4
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(Downloads: 5)
Abstract (Viewed: 2)The Qarawiyyin University in Morocco represents the oldest waqf with an integrated system of education. Employing a qualitative research method, this paper uses a historical institutionalism approach, which includes reviewing literature on history of waqf in Morocco and interviews with officers in charge of waqf in order to understand the challenges inherent in waqf administration there. Although waqf has been practised since the country was formed, the development of waqf properties here is relatively slow in terms of developing creative instruments of waqf. It remains traditional and religious in nature. Thus, this study recommends Morocco government to develop waqf practices in order to fully utilise its benefits. Moving along the spirit of waqf in making changes for the Muslim, Malaysia can learn from Morocco's history.History, Morocco, Muslims, practices, Qarawiyyin University, waqf
5
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(Downloads: 4)
Abstract (Viewed: 1)Charities in Malaysia are regulated by aa few Acts which has its origins in the English law, whereby the concept and purpose of the charity has its origin in the Preamble to Charitable Uses Act 1601. In England and Wales, the prevailing Act on charity is the Charities Act 2011, in which 12 types of charities are acknowledged. The English Charities Act gives power to the courts and the Charity Commissioners to regulate and enforce charitable purposes in order to prevent abuses. In Malaysia, there is no single regulator or monitoring body that oversees these charitable organisations which has led to rampant abuses reported in charity organisations. This paper proposes a uniform law and procedure relating to charitable organisations and a competent body to deal with matters exclusively related to charities within the purview of local legislation, society and customs in Malaysia.Abuses, charities, English Law, monitoring body, uniform law
6
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(Downloads: 4)
Abstract (Viewed: 2)This article examines the role of civil court's judicial review pertaining to the enforcement of shariah criminal offence in Malaysia. The civil court has the power to judicially review the decisions of administrative authorities including any enforcements carried out by government officials and their subordinates whether it is in tandem with law and legislation or not. It assesses the validity of the enforcements and whether the procedural aspect has been legally adhered to. Similarly, the court also has the power to review shariah enforcement actions. Recently, three cases which had been reviewed judicially, namely, the seizure of a book entitled Allah, Love and Liberty, the Muslim men cross-dressing cases and the Kalimah Allah disputes. In these cases, the shariah enforcement actions have been declared unconstitutional, as they infringed the principles of freedom of expression enshrined under the Malaysian Constitution. The primary objective of this paper is to examine the position and implication of such judicial review over shariah criminal offence enforcements. Additionally, examine whether the civil-law trained judges have the necessary expertise to review the shariah related enforcement actions or not. Finally, repercussions of these reviews to the position of Article 121(1A) of the Federal Constitution of Malaysia are also assessed. This article employs full library research as the main source of data and collection content analysis is applied throughout the discussion.Judicial review, Malaysia, shariah criminal offence
7
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(Downloads: 5)
Abstract (Viewed: 6)The protection of refugees, asylum seekers, and stateless people is fragile and unpredictable in ASEAN countries, principally because majority of its member states are not signatory to the 1951 UNHCR convention. Consequently, there is lack of national legal frameworks to offer adequate protection to refugees. In fact, some states have introduced restrictive policies such as denying safe disembarkation or access at the airport and narrowing protection space and access to asylum seekers. There is also an increase in maritime pushbacks and instances of refoulment. As a result, all asylum seekers and refugees are treated as irregular migrants, and in the absence of substantive engagement by the authorities, UNHCR remains the last option for refugees protection responsibilities. This paper examines the status of refugees in Malaysia, a non-signatory party to the Refugee Convention. It lacks legislative and administrative framework to address concerns of refugees and therefore, the study proposes mechanisms that can be adopted by the country to protect and safeguard the interests of refugees without affecting Malaysia's sovereignty.ASEAN, asylum, convention, human rights, mechanisms, refugees, sovereignty, UNHCR
8
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(Downloads: 4)
Abstract (Viewed: 2)Consensus ad idem (meeting of the mind), is a common law doctrine that requires all parties to the contract to understand and accept the commitments and terms outlined in the agreement. Under the Contracts Act 1950 coercion, undue influence, fraud, misrepresentation and mistake vitiate consent. Equally, under the Shariah, consent or redha constitutes the primary element of a contract. A contract entered into without the consent of contracting parties is either void or can be invalidated; depending on the extent of which such consent is vitiated. This paper discusses factors that vitiate consent under the Contract Act 1950 and compare them with the Shari'ah principles. The objective of this article is to identify whether there is a divergence regarding the understanding of the concept of consensus ad-idem under the Malaysian law and the Shari'ah with the intention of identifying the degree of harmony between the two. Analysis was based on secondary data, namely contract law doctrines, statues and comparing different schools of thoughts in defining Shari'ah principles related to this issue.Consensus Ad idem, Contracts Act 1975, redha, shariah
9
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(Downloads: 9)
Abstract (Viewed: 3)The tyranny of majority against the minority is prevented or minimised by constitutional safeguards enforced primarily by the court. This is one of the reasons why Malaysia and Indonesia adopted the doctrine of constitutional supremacy when they achieved independence in 1957 and in 1945 respectively. This paper compares constitutional adjudication as one of the mechanisms of constitutional democracy in both countries. In spite of their geographical proximity and having similar cultural and historical heritages, the two countries have fundamentally different l constitutions. Malaysia follows the common law model where superior courts adjudicate constitutional issues while Indonesia has adopted Kelsenian model by establishing a separate new court, namely the Constitutional Court. This is a qualitative research that examines the role and power of constitutional adjudications institutions of both countries. The development and experiences of the institutions in both countries not only shed light on constitutional democracy of the two countries, but also influences the process of democratic consolidation in the region.Adjudication, constitution court, democracy, Kelsen
10
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(Downloads: 5)
Abstract (Viewed: 1)Most of the cases related to claims of matrimonial property or harta sepencarian are confined to existing personal property which existed or acquired during the marriage prior to the divorce, such as buildings, land, vehicles. However, many modern families are venturing into business either as a principal means of generating income or as an additional measure to generate income. This has resulted in interest in intangible interests such as shares and investments in business (in addition to tangible ones). With the changes in proprietary interest, it is perceived that the scope of claims on matrimonial property shall also be revolutionised to include claims of future earning and intangible interests. This paper analyses cases related to matrimonial property claims in Shari'ah courts in Kelantan, Terengganu and Malacca. The objective is to highlight scope of claims and approaches of the Shari'ah courts in dealing with matrimonial property claims related to intangible interest, such as business interest and future earnings. The research was based on doctrinal and statutory analysis.Intangible interest, Malaysia, matrimonial property, shariah
11
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(Downloads: 2)
Abstract (Viewed: 1)Involvement of children in armed conflicts as child soldiers have prompted worldwide condemnation by humanitarian advocates and child rights activists alike. It is seen as an international humanitarian and human rights crises. It occurs in various parts of the globe, extending from Asia to the United States. It is a common misconception that only non-state armed groups or rebel groups deploy child soldiers. Many governments have also been recruiting under-18 years old into national armed forces. Different reasons have been cited for children's involvement in the armed conflicts. The truth remains that these child soldiers in armed and hostile situations have gone through tough times which have left a deep impact on them emotionally and psychologically. International instruments which support efforts to stop using children as soldiers do exist, the question is their effectiveness. This paper presents an initial study on the issue of child soldier via doctrinal analysis of provisions of international treaties and relevant government policies. It attempts to provide a general overview on the issue of children as child soldiers, the reasons for such occurrence and reviews the various international legal treatises that regulate the use of child soldiers. Armed conflict, child rights, child soldiers, humanitarian crisis, legal treatises
12
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(Downloads: 3)
Abstract (Viewed: 1)The concept of good faith encompasses the notion that all parties to a contract owe a duty to each other beyond those expressly provided by the terms of the contract. Good faith is a popular concept in civil law countries whereby good faith is clearly included in the civil law codes. However, good faith is gaining recognition in common law countries as well. Common law judges and scholars are divided concerning the desirability of qualifying the concept of good faith into Contract law. The objective of this paper is to analyse common law judges and scholars' perspectives on the application and interpretation of good faith. The paper is mainly a library-based research which uses a qualitative approach to analyse data. The findings show good faith had lately influenced common law, therefore, there is a higher chance for good faith to be a recognised and accepted as one of the legal principles of common law.Common law, contract law, good faith
13
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(Downloads: 4)
Abstract (Viewed: 1)Social entrepreneurship is one of the mechanisms to tackle social or community's economic issues and to achieve sustainable development of a country. In Southeast Asia, business entities are mostly private and there are few social and economic enterprises. Therefore, United Kingdom had enacted special laws to govern and to promote the development of social enterprises. These were introduced to address lack of laws to form - charitable social enterprises. In contrast with commercial legal framework, these laws were designed to facilitate social enterprises to prioritise social goals rather than private shareholders interest. The objective of this paper is to explore the possibility of introducing a new legal framework for social entrepreneurs in Malaysia. This legal framework could be used to carry out business activities and gain profit with a clear purpose that profits of the business shall be used for public interest. This paper analyses statutory laws and other legal doctrines to see how this law could be applied in Malaysia.Legal entity, public interest, social entrepreneurship, statutory laws
14
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(Downloads: 6)
Abstract (Viewed: 1)Cross-border marriage is a marriage without permission from the marriage registrar in each state and it is solemnised either in Malaysia or abroad. The purpose of this study is to examine and analyse the level of socio-legal knowledge among Muslims in Malaysia who solemnise the marriage either in Malaysia or abroad. A total of 400 respondents from four regions in Malaysia were recruited for this study. A questionnaire survey was the main data collection method and further supported by semi-structured interviews. Findings show the respondents were aware of the opportunity to register their marriage at the court but did not choose to do so. Therefore, the study proposes new stricter regulations and policies to control and curb cross-border marriages.Cross-border marriage, knowledge, Muslims, registration, strict regulation
15
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(Downloads: 7)
Abstract (Viewed: 1)Al-Quran in surah At-Talaq verse 6 presents in a clear order that it is a mandatory obligation of the husbands to provide lodging, sustenance, and other things to their divorced wives during iddah period. However, husbands often neglect to bear this trust forcing the wives to file petition for their right. Nevertheless, cases have shown that very few women claimed maintenance after divorce for themselves. By neglecting their responsibility, it seems that the husbands are trying to waste the Syariah Court's time and challenge its credibitity. The objective of this paper is to examine the concept, issues and methods of enforcement of iddah maintainance in the State of Terengganu, Malaysia. It also suggests the way foward to enhance the capacity of Syariah court in dealing with the isssue. The authors adopted qualitative research method to gather data and they found that the weaknesses of the enforcement and execution of a court order can contribute to the non-compliance with court orders, especially with regard to maintenance orders.Enforcement weakness, iddah maintenance, non compliance, responsibility, Syariah court
16
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(Downloads: 3)
Abstract (Viewed: 1)The Equal Opportunity Rule (EOR) is the foundation of takeover laws in the United Kingdom and Malaysia. Under the rule, fairness in takeover is considered achieved through affording equal treatment to all shareholders of the target company in four aspects, namely rights to disinvestment, equal premium, information and decision making. The notion of equality favours shareholders and imposes higher burden on the acquirer. From qualitative studies of the rule and comparative analysis between Malaysia and the UK, it may be concluded that the ultimate benefit of the rule is to enable shareholders of a target company to make an informed decision on whether to remain as shareholders after being communicated on the potential changes to the target company and offered with a fair price to exit the company. As shareholders represent larger segment of the society, the rule that favours the majority will directly benefits the society and prevails. Hence, we maintain that the rule should be preserved in the Malaysian takeovers law because social benefit derived from it outweighs harms that it causes to acquirers and are necessary to protect shareholders of the target company from greater harms that takeover might causes in its absence. Equal opportunity, mandatory bid, shareholder's protection, sharing rule, takeover
17
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(Downloads: 5)
Abstract (Viewed: 5)The Federal Constitution of Malaysia (the Constitution) is a living and vibrant document that may have to be amended in order to keep up with contemporary social, economic and political needs of the country. This proposed amendment may destroy its basic structure. The paper seeks to evaluate the doctrine of basic structure which has originally been developed by courts in India. The study is based on doctrinal research and a comparative analysis on the development of the doctrine of basic structure in Indian jurisprudence. It was found that in Malaysia since the Executive controls two thirds or more of the seats in the Dewan Rakyat any part of the Constitution can be amended even if destroys the basic structure of the Constitution.Basic structure, constitutional amendment, India, Malaysian Constitution
18
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(Downloads: 5)
Abstract (Viewed: 1)The remedy of 'avoidance' under CISG is not available for every breach of contract, except for a fundamental one. Many commentators are of the view that the meaning of "fundamental breach" is vague and uncertain. The present paper analyses the dual elements of 'fundamental breach' on the basis of interpretative tools of the Convention, legislative history and an in-depth survey of judicial decisions from various countries. The paper finds that it is too drastic to say that the meaning of fundamental breach is vague but on the contrary the meaning can be refined through judicial interpretation. The paper concludes that though it will take time for case law to completely cover most situations of fundamental breach, it is clear at this stage that a number of basic principles for the determination of fundamental breach are well settled and established.CISG, foreseeability, fundamental breach, remedy of avoidance, substantial detriment
19
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(Downloads: 5)
Abstract (Viewed: 1)Divorce among Muslims married couples in Malaysia occurs every 15 minutes. The rate of divorce in among Muslims couples is twice of that of non-Muslims couples. Children are the most affected individuals from this separation not only in terms of social and emotional aspects but also financially. This paper adopted a qualitative approach by way of analysing the laws, international conventions and related cases to discuss the concept of right to education. Furthermore, it attempts to discuss the financial implications of divorce on children's right to education particularly when the father fails or unable to pay the maintenance to the children. Though the right to education is guaranteed in Malaysia and the government had abolished school fees, the cost of education is still high. . Therefore, the enforcement of judgment order by the court needs to be improved in order to protect the best interest of children i.e. for their right in respect of education.Children, neglect on maintenance, right to education, separated parents
20
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(Downloads: 2)
Abstract (Viewed: 1)It can be said that the source of the modern concept of human rights came from the United Nations. Looking at its charter one can see that the main purpose of the institution is to prevent wars on a global scale but at the same time the charter lays down various explicit and implicit inferences with regards to accepted standards of human rights. This charter came into being before the Universal Declaration of Human Rights and it has the effect of international law rather than the mere declaratory effect. This article will trace the creation of the charter, its references to human rights standards, the jurisprudential argument with regards to the obligatory nature of the charter, the impediments both causal and argumentative and the transcendence of a 'uniform' standard of human rights and erosion of local perspectives of human rights.Domestic human rights, human rights, universal human rights, UN Charter
21
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(Downloads: 47)
Abstract (Viewed: 9)The ASEAN Economic Community (AEC) is one of the pillars of the ASEAN Community. AEC goal is regional economic integration by 2015. AEC envisages the following key characteristics: (a) a single market and production base, (b) a highly competitive economic region, (c) a region of equitable economic development, and (d) a region fully integrated into the global economy. Yogyakarta is a city in Indonesia where many citizens are involved in small and medium-sized enterprises (SMEs). Based on the data obtained from the Department of Trade, Industry and Cooperatives Bureau of Yogyakarta, in 2015 there were 230,047 SMEs. The fierce competition from the single market will have an impact on the survival of the SMEs. The Indonesian government ratified the ICESCR into ICESCR Ratification Act 2005. The government has a binding obligation to take various measures "to respect", "to protect" and "to fulfil" human rights towards SMEs in Yogyakarta.AEC 2015, economic, social and cultural rights, SMEs, Yogyakarta
22
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(Downloads: 7)
Abstract (Viewed: 1)In Malaysia, as of January 2016, nearly 90% of the legal firms comprise less than five partners (4818 firm out of 5405 firms registered). With small number of partners and lack of knowledge in accounting, it is perceived that a special accounting management system for the law firms would be vMEC App: Enhancing Legal Knowledge via Smartphoneery useful for the lawyers to operate their accounts and book keeping. At present, there are many software on legal firms account management system, for example, the MyCase's web based legal practice management software and the QuickBooks legal accounting software. However, most of this international formulated software are expensive and might not be suitable to cater to the practice of local small law firms. Computerised Accounting Information System for law firms (CAIS@LAW), is specially developed to assist the small law firms in Malaysia. The report produced by CAIS@LAW is also sufficient for submission to professional bodies.Account management system, law firms, Malaysia
23
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(Downloads: 5)
Abstract (Viewed: 1)Knowledge and advancement in technology are indispensable in today's living. One of the most popular products is the smartphone. As smartphones continue to grow in popularity, it is important to look into how legal education and understanding could be enhanced via applications (apps) available in the smartphone. This paper discusses how smartphone application could enhance understanding of the Malaysia Federal Constitution among the public, academics and legal practitioners. The app, named MEC contains all provisions of the Constitution is invented to replace the print version whose bulk has long been a problem for students to bring it to the class. The app was developed using Rapid Application Development (RAD) methodology, a common method used in computer software and mobile apps development. Application, constitution law, smartphones
24
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(Downloads: 4)
Abstract (Viewed: 1)The National Land Code 1965 is the highest law in Peninsular Malaysia in respect to land administration. It is a codification of laws covering various important aspects of rights and powers over land. This paper will discuss the issue of squatters, temporary occupation of lands and corruption in land administration with respect to the rights of stakeholders. The research methodology involves case analysis to analyse the duly decided and reported cases which had led to amendments in the National Land Code 1965. The study reveals that there are evident flaws in the administration of land in the arising legal issues highlighted. This study will also highlight some of the proposed improvements to improve both land administration and land law to protect the rights of parties who have interests on lands.Issue of land administration, National Land Code 1965, weaknesses and recommendations
25
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(Downloads: 3)
Abstract (Viewed: 1)In the late 20th century the increasing international emphasis on the recognition of religious freedom had led the United States to draw the International Religious Freedom Act (1998) in October 1998. The Act aims to improve the ability of United States to advance religious freedom through its foreign policy. However, after almost 18 years since its establishment, it is important to highlight that IRFA's report had focused on the issue in Muslim-majority countries. In fact, many Muslim countries were classified as "Countries Particular Concern" (CPC) that is violators of religious freedom. The objective of this article is to study critically the IRFA report with regard to Muslim countries. It contends that the US government had given too much focus to Muslim countries. Though the law has the potential to be a useful tool to protect religious freedom, the result of IRFA report in meddling in affairs of Muslim-majority states is the major flaw. The paper will also examine, at glance, on the concept of religious freedom within the framework of maqasid al-shariah (the objectives of Shariah law).International Religious Freedom Act (IRFA), religious freedom, religion and international relations
26
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(Downloads: 8)
Abstract (Viewed: 2)Syariah courts in Malaysia have the jurisdiction to impose punishments up to 3 years imprisonment, 6 strokes and RM5000 fine or combination of any two or three of the punishments (Criminal Jurisdictions) Act (Amendment 1984). Referring to Syariah Criminal Offences Act, Syariah Court Judge has the discretion to impose punishment for first offender, youthful offender, woman offender and those who has previous conviction. The judge can consider light punishments as an alternative to the punishment provided for that particular offence. Hence, a judge can use his discretion to order for good behaviour or send the offender to rehabilitation centre/approved home. This paper seeks to examine the possibility of the Syariah Court to give an order of community service as an alternative punishment. This research is basically qualitative and analysis based on the discussions of the implementation of a community service order as practised by civil courts.Alternative punishment criminal offender, order for community service, Syariah court

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