Pub Date : 2021-06-30DOI: 10.31436/iiumlj.v29i1.652
A. Mohd, B. Ibrahim, Siti Zainab Abd Rashid
Islamic law is primarily based on the Qur’an and the Sunnah of the Prophet (s.a.w). Due to the changes in place and time, there are occasions where new cases may not have clear and direct principles from the Qur’an and the Sunnah of the Prophet (s.a.w). Accordingly, solutions for new cases require the exercise of ijtihad and application of fatwa in establishing new rulings. This study deals with selected maslahah based fatwas on issues relating to family law in Malaysia. The study is undertaken in order to provide an overview on the issuance of maslahah based fatwa relating to family law issues, so that sound new rulings could be established for the benefit of the whole nation. Focus is made on fatwas that have been issued relating to child marriages, legitimacy of children and ascription of paternity, jointly acquired property and suckling relationships. In Malaysia, family matters fall under the jurisdiction of the state. Therefore, if a new case arises and it requires a legal opinion, a State based fatwa will be issued. The study adopts a qualitative research methodology based on available library-based materials. State fatwas are also referred to and examined. Finally, the article suggests improvements to the exercise of ijtihad and the issuance of fatwa in Malaysia.
{"title":"AN OVERVIEW OF SELECTED MASLAHAH BASED FATWAS RELATING TO FAMILY LAW ISSUES IN MALAYSIA","authors":"A. Mohd, B. Ibrahim, Siti Zainab Abd Rashid","doi":"10.31436/iiumlj.v29i1.652","DOIUrl":"https://doi.org/10.31436/iiumlj.v29i1.652","url":null,"abstract":"Islamic law is primarily based on the Qur’an and the Sunnah of the Prophet (s.a.w). Due to the changes in place and time, there are occasions where new cases may not have clear and direct principles from the Qur’an and the Sunnah of the Prophet (s.a.w). Accordingly, solutions for new cases require the exercise of ijtihad and application of fatwa in establishing new rulings. This study deals with selected maslahah based fatwas on issues relating to family law in Malaysia. The study is undertaken in order to provide an overview on the issuance of maslahah based fatwa relating to family law issues, so that sound new rulings could be established for the benefit of the whole nation. Focus is made on fatwas that have been issued relating to child marriages, legitimacy of children and ascription of paternity, jointly acquired property and suckling relationships. In Malaysia, family matters fall under the jurisdiction of the state. Therefore, if a new case arises and it requires a legal opinion, a State based fatwa will be issued. The study adopts a qualitative research methodology based on available library-based materials. State fatwas are also referred to and examined. Finally, the article suggests improvements to the exercise of ijtihad and the issuance of fatwa in Malaysia.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49092826","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-30DOI: 10.31436/iiumlj.v29i1.481
Osama Ismail Mohammad Amayreh, Izura Masdina Mohamed Zakri, Pardis Moslemzadeh Tehrani, Y. Shandi
The phrase “who says contractual, says justice” (qui dit contractuel dit juste) does not fully express the truth of present reality, where the phrase itself falls into doubt, since a contract does not always result in fair obligations. In this regard, the French judiciary realized that the absence of justice in a contract might arise as a result of the contractual freedom afforded to the contracting parties. Thus, the idea of Commutative Justice in the contract was developed, such as, the Chronopost’s decision which is considered one of its most important applications. However, the equivalence of rights and obligations in the Palestinian Draft Civil Code only exists in a virtual form, without any content that actually contributes to the achievement of the equivalence between rights and obligations in contracts. This article seeks to prove that the provisions of the causation theory in the Palestinian Draft Civil Code can be used as an effective means for achieving contractual justice between the contracting parties, in order to maintain economic contractual equilibrium of the contract. To do so, the function of the causation theory should be analysed in a comparative analytical approach with the Chronopost’s decision to illustrate the Palestinian legislative deficiencies. It will also show the need for adopting the French judicial approach, which will establish a general rule that any arbitrary clause that contravenes the essential obligation of the contract is considered to be unwritten, regardless of the nature or the subject matter of the contract.
“谁说合同，谁说正义”（qui dit contractiel dit juste）这句话并没有完全表达当前现实的真实性，因为合同并不总是产生公平的义务，这句话本身就受到了质疑。在这方面，法国司法机构认识到，合同中缺乏公正可能是由于给予合同当事人合同自由的结果。因此，在合同中提出了减刑司法的概念，例如Chronopost的决定，这被认为是其最重要的应用之一。然而，《巴勒斯坦民法典草案》中的权利和义务对等只是以虚拟的形式存在，没有任何内容真正有助于实现合同中权利和义务的对等。本文试图证明，《巴勒斯坦民法典草案》中因果关系理论的规定可以作为实现缔约方之间合同公正的有效手段，以保持合同的经济合同平衡。为此，因果关系理论的功能应与Chronopost说明巴勒斯坦立法缺陷的决定进行比较分析。它还将表明有必要采用法国的司法方法，该方法将确立一条一般规则，即任何违反合同基本义务的任意条款都被视为不成文的，无论合同的性质或标的物如何。
{"title":"A NEW ROLE OF CAUSATION THEORY TOWARDS ACHIEVING ECONOMIC CONTRACTUAL EQUILIBRIUM: ANNULLING THE ARBITRARY CONTRACTUAL CONDITIONS","authors":"Osama Ismail Mohammad Amayreh, Izura Masdina Mohamed Zakri, Pardis Moslemzadeh Tehrani, Y. Shandi","doi":"10.31436/iiumlj.v29i1.481","DOIUrl":"https://doi.org/10.31436/iiumlj.v29i1.481","url":null,"abstract":"The phrase “who says contractual, says justice” (qui dit contractuel dit juste) does not fully express the truth of present reality, where the phrase itself falls into doubt, since a contract does not always result in fair obligations. In this regard, the French judiciary realized that the absence of justice in a contract might arise as a result of the contractual freedom afforded to the contracting parties. Thus, the idea of Commutative Justice in the contract was developed, such as, the Chronopost’s decision which is considered one of its most important applications. However, the equivalence of rights and obligations in the Palestinian Draft Civil Code only exists in a virtual form, without any content that actually contributes to the achievement of the equivalence between rights and obligations in contracts. This article seeks to prove that the provisions of the causation theory in the Palestinian Draft Civil Code can be used as an effective means for achieving contractual justice between the contracting parties, in order to maintain economic contractual equilibrium of the contract. To do so, the function of the causation theory should be analysed in a comparative analytical approach with the Chronopost’s decision to illustrate the Palestinian legislative deficiencies. It will also show the need for adopting the French judicial approach, which will establish a general rule that any arbitrary clause that contravenes the essential obligation of the contract is considered to be unwritten, regardless of the nature or the subject matter of the contract.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41815161","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-30DOI: 10.31436/iiumlj.v29i1.593
Norehan Kamaruddin, N. M. Zin
This article is a study on human trafficking, which is the second most lucrative and profitable transnational organized crime in the world after drug trafficking. This crime is also known as a form of modern slavery, where humans are used as commodities to generate profit, and victims are prevented from accessing their fundamental rights. The victims of this crime are women, men, and children; however, the repercussions are far more serious when involving children. Human trafficking devastates the prospects of the future generation, where children are often forced into sexual exploitation, forced labour, illegal adoption and child marriage. In addition, such crime not only impacts the social, politic, economic and national security of a country but is also a grave violation of the child victims’ human rights. The main objective of the present article is to address the adequacy of Malaysian law in dealing with child trafficking and to see whether it is in line with international standards. The study suggests that many gaps exist in the current legislation dealing with human trafficking. These gaps need to be addressed especially those dealing with child trafficking. A qualitative approach was utilized in this study, where it involved library research to analyze the protection given by the Convention on the Rights of the Child and the extent of its implementation into domestic legislation, in order to combat child trafficking in Malaysia. This study found that Malaysia’s existing laws are inadequate to protect child victims of trafficking in Malaysia and need to meet the current standards and protection for victims, which include the identification of identity, appointment of a guardian, providing interim care protection, durable solution, and access to justice.
{"title":"COMBATING CHILD TRAFFICKING: IS THE CONVENTION ON THE RIGHTS OF THE CHILD (CRC) AND EXISTING LAWS IN MALAYSIA ADEQUATE?","authors":"Norehan Kamaruddin, N. M. Zin","doi":"10.31436/iiumlj.v29i1.593","DOIUrl":"https://doi.org/10.31436/iiumlj.v29i1.593","url":null,"abstract":"This article is a study on human trafficking, which is the second most lucrative and profitable transnational organized crime in the world after drug trafficking. This crime is also known as a form of modern slavery, where humans are used as commodities to generate profit, and victims are prevented from accessing their fundamental rights. The victims of this crime are women, men, and children; however, the repercussions are far more serious when involving children. Human trafficking devastates the prospects of the future generation, where children are often forced into sexual exploitation, forced labour, illegal adoption and child marriage. In addition, such crime not only impacts the social, politic, economic and national security of a country but is also a grave violation of the child victims’ human rights. The main objective of the present article is to address the adequacy of Malaysian law in dealing with child trafficking and to see whether it is in line with international standards. The study suggests that many gaps exist in the current legislation dealing with human trafficking. These gaps need to be addressed especially those dealing with child trafficking. A qualitative approach was utilized in this study, where it involved library research to analyze the protection given by the Convention on the Rights of the Child and the extent of its implementation into domestic legislation, in order to combat child trafficking in Malaysia. This study found that Malaysia’s existing laws are inadequate to protect child victims of trafficking in Malaysia and need to meet the current standards and protection for victims, which include the identification of identity, appointment of a guardian, providing interim care protection, durable solution, and access to justice.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41953230","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-30DOI: 10.31436/iiumlj.v29i1.650
Wan Ahmad Fauzi, Wan Husain
The doctrine of the basic structure of a constitution would be undisputable if those elements thereunder are clear and representing the facts of our local history, nationhood, and the principle of the rule of law. Former Chief Justice Tun Abdul Hamid Mohamad argued that the doctrine of the basic structure of a constitution introduced by the Indian Supreme Court contradicts Article 159 of the Federal Constitution and beyond the competent jurisdiction of the local courts. Hence, this article puts forward the conceptual framework of the basic structure adopted by the Federal Court in the case of Indira Gandhi to articulate those elements summed therein viewed from the watanic jurisprudence. The watanic jurisprudence analyses legal documents and sources of sovereignty based upon two philosophical worldviews; continuum and dichotomous frameworks relying upon the local legal history context and the present legal provisions of a country. Depending on a broad and purposive manner in proper linguistic, philosophic, and historical contexts of the Malaysian legal historical documents, the legitimate elements of the basic structure are the principle of sovereignty as embedded in the oath of office of the Yang di-Pertuan Agong together with the matters aggregated in Article 38(4), Article 159(5) and Article 161E. The oath of the Yang di-Pertuan Agong thus legitimizes Syariah compliance as the rule of law. The Federal Constitution of Malaysia also expressly protects its basic structure with strict conditional amendments. In conclusion, the basic structure of our Federal Constitution must be viewed from our local circumstances in compliance with the principle of constitutional supremacy and the rule of law.
如果宪法基本结构的原则是明确的，并且代表了我们地方历史的事实、国家地位和法治原则，那么宪法基本结构的原则就是无可争议的。前首席大法官Tun Abdul Hamid Mohamad认为，印度最高法院提出的宪法基本结构原则与联邦宪法第159条相矛盾，超出了地方法院的管辖范围。因此，本文提出了联邦法院在英迪拉·甘地案中采用的基本结构的概念框架，以阐明从瓦塔尼法学角度总结的这些要素。西方法理学基于两种哲学世界观来分析法律文书和主权的来源;依赖于当地法律历史背景和国家现行法律规定的连续和二分框架。根据马来西亚法律历史文件的广泛和有目的的语言、哲学和历史背景，基本结构的合法要素是包含在国家元首宣誓就职中的主权原则，以及第38(4)条、第159(5)条和第161E条中的事项。因此，国家元首的宣誓使遵守伊斯兰教成为合法的法治。马来西亚联邦宪法也明确保护其基本结构，并进行严格的有条件的修订。最后，必须根据宪法至上和法治的原则，从我国的地方情况来看待我国《联邦宪法》的基本结构。
{"title":"WATANIC JURISPRUDENCE: ARTICULATING THE LEGITIMATE ELEMENTS OF THE BASIC STRUCTURE OF THE FEDERAL CONSTITUTION","authors":"Wan Ahmad Fauzi, Wan Husain","doi":"10.31436/iiumlj.v29i1.650","DOIUrl":"https://doi.org/10.31436/iiumlj.v29i1.650","url":null,"abstract":"The doctrine of the basic structure of a constitution would be undisputable if those elements thereunder are clear and representing the facts of our local history, nationhood, and the principle of the rule of law. Former Chief Justice Tun Abdul Hamid Mohamad argued that the doctrine of the basic structure of a constitution introduced by the Indian Supreme Court contradicts Article 159 of the Federal Constitution and beyond the competent jurisdiction of the local courts. Hence, this article puts forward the conceptual framework of the basic structure adopted by the Federal Court in the case of Indira Gandhi to articulate those elements summed therein viewed from the watanic jurisprudence. The watanic jurisprudence analyses legal documents and sources of sovereignty based upon two philosophical worldviews; continuum and dichotomous frameworks relying upon the local legal history context and the present legal provisions of a country. Depending on a broad and purposive manner in proper linguistic, philosophic, and historical contexts of the Malaysian legal historical documents, the legitimate elements of the basic structure are the principle of sovereignty as embedded in the oath of office of the Yang di-Pertuan Agong together with the matters aggregated in Article 38(4), Article 159(5) and Article 161E. The oath of the Yang di-Pertuan Agong thus legitimizes Syariah compliance as the rule of law. The Federal Constitution of Malaysia also expressly protects its basic structure with strict conditional amendments. In conclusion, the basic structure of our Federal Constitution must be viewed from our local circumstances in compliance with the principle of constitutional supremacy and the rule of law.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41837170","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-30DOI: 10.31436/iiumlj.v29i1.609
Hind Sebar, Shahrul Mizan Ismail
Flogging is one of the most widely-used corporal punishments in Islamic penology. Most countries that practice Islamic criminal law use flogging to punish a variety of crimes and offenses. Saudi Arabia is one of the countries that use flogging to punish various crimes and has faced immense backlash from the international community for gross violation of human rights. The goal of this article is to investigate the implementation of flogging as a punishment in Saudi Arabia. Moreover, it also examines how international human rights law has contributed to limiting flogging as a form of criminal punishment. This study has critically analysed several human rights documents in order to understand how flogging is viewed under international human rights law if compared to the position under the Shari‘ah. Focus on the implementation of flogging in Saudi Arabia is made in particular. In addition, it is found that the application of flogging in Saudi Arabia is overused and is uncodified. Hence, the article signifies the necessity of codifying Islamic law to ensure fair legal procedures. Interestingly, a recent announcement that abolishes flogging as a common form of punishment, indicates the willingness of the kingdom to implement judicial reforms, thereby creating a ray of hope in the form of amendment of laws.
{"title":"THE USE OF FLOGGING AS A PUNISHMENT IN SAUDI ARABIA FROM THE PERSPECTIVE OF INTERNATIONAL HUMAN RIGHTS LAW","authors":"Hind Sebar, Shahrul Mizan Ismail","doi":"10.31436/iiumlj.v29i1.609","DOIUrl":"https://doi.org/10.31436/iiumlj.v29i1.609","url":null,"abstract":"Flogging is one of the most widely-used corporal punishments in Islamic penology. Most countries that practice Islamic criminal law use flogging to punish a variety of crimes and offenses. Saudi Arabia is one of the countries that use flogging to punish various crimes and has faced immense backlash from the international community for gross violation of human rights. The goal of this article is to investigate the implementation of flogging as a punishment in Saudi Arabia. Moreover, it also examines how international human rights law has contributed to limiting flogging as a form of criminal punishment. This study has critically analysed several human rights documents in order to understand how flogging is viewed under international human rights law if compared to the position under the Shari‘ah. Focus on the implementation of flogging in Saudi Arabia is made in particular. In addition, it is found that the application of flogging in Saudi Arabia is overused and is uncodified. Hence, the article signifies the necessity of codifying Islamic law to ensure fair legal procedures. Interestingly, a recent announcement that abolishes flogging as a common form of punishment, indicates the willingness of the kingdom to implement judicial reforms, thereby creating a ray of hope in the form of amendment of laws.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48484131","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-30DOI: 10.31436/iiumlj.v29i1.536
K. Mokhtar
Health rights, unlike political and economic rights, until recently has not received sufficient attention that it truly deserves despite being equally important as other aspects of human rights. It is timely that the right to health be given serious attention and more coverage by the media, legal fraternity and the authorities as well as by the public at large. Unfortunately, the Malaysian Constitution does not have any express provision which recognizes health right and no laws in the country so far acknowledged such right. Hence, this research is done to supplement the gap. This is a legal research which applies qualitative approach focusing on rights relating to private and public health. It is a doctrinal and jurisprudential study and examines international and national laws, especially the Malaysian Constitution. Health is essential for a good life of any human being. Without it a person cannot have a quality life. Although it cannot be expected that government must guarantee everybody will be healthy it cannot be denied that among the functions and obligations of the governments are to provide healthcare services to the community and ensure that facilities and avenues for medical treatments are available to the people. This right has been firmly established in international human rights laws. Its realization has been the subject and objective of various international conventions and policies. It is believed that right to health is ingrained in the constitution of the country and should be recognized by the courts and the governments.
{"title":"HEALTH AND HUMAN RIGHTS WITHIN THE CONTEXT OF INTERNATIONAL HUMAN RIGHTS LAWS AND THE MALAYSIAN CONSTITUTION","authors":"K. Mokhtar","doi":"10.31436/iiumlj.v29i1.536","DOIUrl":"https://doi.org/10.31436/iiumlj.v29i1.536","url":null,"abstract":"Health rights, unlike political and economic rights, until recently has not received sufficient attention that it truly deserves despite being equally important as other aspects of human rights. It is timely that the right to health be given serious attention and more coverage by the media, legal fraternity and the authorities as well as by the public at large. Unfortunately, the Malaysian Constitution does not have any express provision which recognizes health right and no laws in the country so far acknowledged such right. Hence, this research is done to supplement the gap. This is a legal research which applies qualitative approach focusing on rights relating to private and public health. It is a doctrinal and jurisprudential study and examines international and national laws, especially the Malaysian Constitution. Health is essential for a good life of any human being. Without it a person cannot have a quality life. Although it cannot be expected that government must guarantee everybody will be healthy it cannot be denied that among the functions and obligations of the governments are to provide healthcare services to the community and ensure that facilities and avenues for medical treatments are available to the people. This right has been firmly established in international human rights laws. Its realization has been the subject and objective of various international conventions and policies. It is believed that right to health is ingrained in the constitution of the country and should be recognized by the courts and the governments.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42666768","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-30DOI: 10.31436/iiumlj.v29i1.628
F. Muhammadin
{"title":"Book Review: Muslim Conduct of State, by Muhammad Hamidullah","authors":"F. Muhammadin","doi":"10.31436/iiumlj.v29i1.628","DOIUrl":"https://doi.org/10.31436/iiumlj.v29i1.628","url":null,"abstract":"","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49088329","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-30DOI: 10.31436/iiumlj.v29i1.630
A. Hamid
On 23rd January 2020, the International Court of Justice indicated provisional measures to protect the Rohingya from the alleged genocidal acts committed in Myanmar. Rejecting the argument made by Myanmar, the World Court decided that The Gambia has standing before the court although it was not directly injured by the alleged wrongful act. The court applied the concept of “obligations erga omnes partes” in the context of its ruling on standing. The court, however, did not elaborate more on the concept and did not touch on its details. Since this case had attracted so much international attention, the concept has become a trending topic for legal discourse. This article, therefore, is an attempt to resolve the issues of whether the concept of obligations erga omnes partes has been established as a rule of customary international law and whether such an obligation may arise from any type of multilateral treaty and any provision in a multilateral treaty. To this end, the article analyses the jurisprudence of the International Court of Justice (ICJ), the case law of international human rights courts and the work and the valuable commentary of the International Law Commission on Article 48 of the Articles on the Responsibility of States for Internationally wrongful Act 2001. The article concludes that the concept of obligations erga omnes partes has been established as a rule of customary international law, that it may arise from any type of multilateral treaty and that it is applicable only in relation to the provision of a treaty that is essential to the accomplishment of object and purpose of the treaty.
{"title":"THE ROHINGYA GENOCIDE CASE (THE GAMBIA V MYANMAR): BREACH OF OBLIGATIONS ERGA OMNES PARTES AND THE ISSUE OF STANDING","authors":"A. Hamid","doi":"10.31436/iiumlj.v29i1.630","DOIUrl":"https://doi.org/10.31436/iiumlj.v29i1.630","url":null,"abstract":"On 23rd January 2020, the International Court of Justice indicated provisional measures to protect the Rohingya from the alleged genocidal acts committed in Myanmar. Rejecting the argument made by Myanmar, the World Court decided that The Gambia has standing before the court although it was not directly injured by the alleged wrongful act. The court applied the concept of “obligations erga omnes partes” in the context of its ruling on standing. The court, however, did not elaborate more on the concept and did not touch on its details. Since this case had attracted so much international attention, the concept has become a trending topic for legal discourse. This article, therefore, is an attempt to resolve the issues of whether the concept of obligations erga omnes partes has been established as a rule of customary international law and whether such an obligation may arise from any type of multilateral treaty and any provision in a multilateral treaty. To this end, the article analyses the jurisprudence of the International Court of Justice (ICJ), the case law of international human rights courts and the work and the valuable commentary of the International Law Commission on Article 48 of the Articles on the Responsibility of States for Internationally wrongful Act 2001. The article concludes that the concept of obligations erga omnes partes has been established as a rule of customary international law, that it may arise from any type of multilateral treaty and that it is applicable only in relation to the provision of a treaty that is essential to the accomplishment of object and purpose of the treaty.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2021-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48060434","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-05-12DOI: 10.31436/IIUMLJ.V29I(S1).635
Ravindran Nadarajan, Norliah Ibrahim, N. M. Zin
Upon divorce, the economic disparities between the spouses are usually disputed where the non-acquiring spouse is left with little or no matrimonial property. This article discusses the application of the enhanced earning capacity principle as practiced in New Zealand in order to examine possible adoption in Malaysia. Analysis of New Zealand’s judicial decisions is made in order to identify approaches in determining future assets as matrimonial property to compensate for the economic disparity between spouses. The article proceeds to consider applications of those principles by the Malaysian courts under Section 76 of Law Reform (Marriage and Divorce) Act 1976. Considering this issue, it is found that the enabling statute is New Zealand’s Property (Relationships) Amendment Act 2001 recognizes that upon divorce, the enhanced earnings acquired during the marriage are subject to a division on the basis that the other spouse has also directly or indirectly contributed to compensate the economic disparity suffered by the referred spouse. The case law analysis is conducted on selected cases merely to justify on the enhanced earning capacity distributed as matrimonial property in New Zealand. Undoubtedly, the claim on enhanced earning capacity as the matrimonial property will compensate the spouse if his or her living standards and income become significantly lesser than the other party due to divorce.
{"title":"CLAIMING ENHANCED EARNING CAPACITY IN MATRIMONIAL PROPERTY DISPUTES: LESSONS FROM NEW ZEALAND","authors":"Ravindran Nadarajan, Norliah Ibrahim, N. M. Zin","doi":"10.31436/IIUMLJ.V29I(S1).635","DOIUrl":"https://doi.org/10.31436/IIUMLJ.V29I(S1).635","url":null,"abstract":"Upon divorce, the economic disparities between the spouses are usually disputed where the non-acquiring spouse is left with little or no matrimonial property. This article discusses the application of the enhanced earning capacity principle as practiced in New Zealand in order to examine possible adoption in Malaysia. Analysis of New Zealand’s judicial decisions is made in order to identify approaches in determining future assets as matrimonial property to compensate for the economic disparity between spouses. The article proceeds to consider applications of those principles by the Malaysian courts under Section 76 of Law Reform (Marriage and Divorce) Act 1976. Considering this issue, it is found that the enabling statute is New Zealand’s Property (Relationships) Amendment Act 2001 recognizes that upon divorce, the enhanced earnings acquired during the marriage are subject to a division on the basis that the other spouse has also directly or indirectly contributed to compensate the economic disparity suffered by the referred spouse. The case law analysis is conducted on selected cases merely to justify on the enhanced earning capacity distributed as matrimonial property in New Zealand. Undoubtedly, the claim on enhanced earning capacity as the matrimonial property will compensate the spouse if his or her living standards and income become significantly lesser than the other party due to divorce.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":"29 1","pages":"61-71"},"PeriodicalIF":0.2,"publicationDate":"2021-05-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45182000","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-05-12DOI: 10.31436/IIUMLJ.V29I(S1).636
Norliah Ibrahim, Zuhairah Ariff Abdul Ghadas, R. C. Soh
In Malaysia, the contribution test is applied by both the Civil and Shariah courts to determine claims in business interest as matrimonial property. However, it is observed that different from claims on interest in personal property, the courts have to apply additional test other than the contribution test in determining claims of matrimonial property in business interest. This is because the ownership structure in business are different from ownership of personal property and highly dependents on types of the business entities. Apart from analyzing the approaches adopted in the Malaysian courts in dividing business interest upon divorce or dissolution of marriage, this research also highlights the arising legal issues which may arise in respect of different business entities in which the business interest exists. This study was conducted primarily through a doctrinal study of existing literature such as articles, journals and the decision from the relevant case laws which was decided in both the Civil and Shariah courts. This research found that other than types of business entities, the interest of parties in business is also determined by the quantum of shareholding or contribution in the business.
{"title":"“MONEY MATTERS”; DIVIDING BUSINESS INTERESTS ON DIVORCE OR DISSOLUTION: SPECIAL REFERENCE TO THE BUSINESS ENTITIES","authors":"Norliah Ibrahim, Zuhairah Ariff Abdul Ghadas, R. C. Soh","doi":"10.31436/IIUMLJ.V29I(S1).636","DOIUrl":"https://doi.org/10.31436/IIUMLJ.V29I(S1).636","url":null,"abstract":"In Malaysia, the contribution test is applied by both the Civil and Shariah courts to determine claims in business interest as matrimonial property. However, it is observed that different from claims on interest in personal property, the courts have to apply additional test other than the contribution test in determining claims of matrimonial property in business interest. This is because the ownership structure in business are different from ownership of personal property and highly dependents on types of the business entities. Apart from analyzing the approaches adopted in the Malaysian courts in dividing business interest upon divorce or dissolution of marriage, this research also highlights the arising legal issues which may arise in respect of different business entities in which the business interest exists. This study was conducted primarily through a doctrinal study of existing literature such as articles, journals and the decision from the relevant case laws which was decided in both the Civil and Shariah courts. This research found that other than types of business entities, the interest of parties in business is also determined by the quantum of shareholding or contribution in the business.","PeriodicalId":40704,"journal":{"name":"IIUM Law Journal","volume":"29 1","pages":"73-90"},"PeriodicalIF":0.2,"publicationDate":"2021-05-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46385785","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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