Malaysian Law Research Articles

Who counts as a stateless person? Nation-statist logics and the liabilities of potential citizenship elsewhere

ABSTRACT This article examines how the definition of statelessness is contested below the formal letter of the law in Malaysia. Analysing court cases, interviews with lawyers, and public discourse, I encounter a paradox: that stateless people in Malaysia are produced through juridical, bureaucratic, and discursive repudiations of their claims to statelessness. Adhering to “nation-statist logics,” Malaysian state actors commonly reject citizenship claimants’ assertions of being stateless by classifying them instead as foreigners, thus shunting responsibility for their inclusion elsewhere beyond Malaysian borders. These practices disproportionately burden minorities with racialized, migrant backgrounds with presumptions of having “potential citizenship” elsewhere, even if such links are tenuous or merely theoretical. By centering how stateless people articulate their belonging in the face of abject exclusion, and how categories of stateless and citizen are flexibly mobilized in legal, political, and social spheres, this article offers new avenues for critiquing the normativity of the contemporary nation-state system.

ISLAMIC FAMILY LAW ON POLYGAMOUS MARRIAGE IN MALAYSIA: BETWEEN ROSES AND THORNS

Marriage is a way of gaining a peaceful mind and soul, be it monogamous or polygamous marriage. This is the sweetness of marriage as enshrined by Islam. To achieve this wisdom, conditions laid down by the religion and legal requirements must be observed. Otherwise, a marriage may turn into a miserable and thorny life for couples, especially in polygamy. Thus, the purpose of this paper is to disseminate legal knowledge and refine the understanding about polygamous law in Malaysia. The central arguments of this study are two-pronged: (1) to deliberate on the Malaysian legal framework for polygamous marriage and (2) to discuss a crucial legal issue related to polygamy, namely cross-border marriage and its effects. The qualitative method of doctrinal legal research was employed to obtain and analyse primary and secondary data from various sources. It included examining the statutes and decided cases of the Syariah Courts, including reported and unreported cases. The relevant statutes studied were the Islamic Family Law (Federal Territories) Act 1984 and the Enactment of Islamic Family Law (Kedah Darul Aman) 2008. In substantiating arguments, data from e-Syariah Version 3 (ESV3) was used together with existing literature. The findings revealed that refusal or failure to comply with legal requirements pertaining to polygamous marriage may lead to cross-border marriage and its aftermath effects on the legality of the marriage, jurisdiction of the court, and the rights of wives and children in the context of law. Hence, the enforcement of existing laws on polygamy should be emphasised to control any abuse of power by a man to contract a polygamous marriage. More importantly, the laws and enforcement should be strengthened to protect the rights of the wives and children. Future research may focus on issues involving the rights of the wives and children of a polygamous marriage upon the death of the husband or father according to Islamic family law in Malaysia and its implementation.

Striking the Right Chord: Legal Dynamics of Music Copyright Law in Malaysia

Striking the Right Chord: Legal Dynamics of Music Copyright Law in Malaysia

"MAMA PAPA PLEASE HEAR ME": THE PARTICIPATION OF CHILDREN IN CHILD CUSTODY MEDIATION IN THE SYARIAH COURTS OF MALAYSIA

The laws in Malaysia uphold the rights of children to participate in family law proceedings, particularly in custody disputes. However, with regard to the practice of mediation (sulh) in child custody disputes, the specific legislation that highlights measures to obtain the views of children is still vague. This paper will discuss the practice of children’s participation during mediation (sulh) in child custody disputes. The study reported in this paper has also highlighted the challenges and the adequacy of legal provisions on the practice of children’s participation during mediation (sulh). The present qualitative study has adopted a library-based research method to collect information, data, and theories from selected materials, including journal articles, textbooks, statutes, and interview methods. It also discussed how children were engaged in court-directed mediation proceedings in the Syariah Court of Malaysia. It has also examined the practice of the Syariah court in accepting the voice of children in mediation regarding decision-making in child custody dispute cases. The examination focused on the relevant legislations and policies relating to children participating in mediation in the context of international legal provisions and Syariah laws. The paper further discussed the analysis of whether the rules and procedures in Malaysia are adequate to sustain children’s participation during mediation. The data were also gathered from interviews conducted with mediators or sulh officers. Finally, the study revealed that interviewing children during sulh sessions at the Syariah Court is common even though there are no clear regulations on the practice. It is suggested that a broader interpretation of the current legislation on the voice of children enables the legality of the practice of accepting children’s voices during the Majlis Sulh. Furthermore, it is recommended that a proper standard operating procedure (SOP) for obtaining children’s views during the mediation (sulh) process is also needed.

Beyond Hopes, Beyond Cures: A Proposed Malaysian Regulatory Framework for Somatic Gene Therapy in Human

After serious side effects 20 years ago, somatic gene therapy (SGT) is gaining traction again. The pipeline for somatic gene therapy has expanded rapidly. Although SGT has shown remarkable efficacy for cancer and genetic diseases, it also carries risks, ethical challenges, and legal concerns. This study intends to (i) present Malaysia's experience with SGT clinical trials (ii) evaluate the adequacy of existing regulatory frameworks and (iii) propose future legislation. The study employs a qualitative approach by utilizing both primary and secondary data. Statutory provisions are referred to for doctrinal legal analysis. Primary data was collected through a purposeful sampling of experts. Interviews were conducted with government representatives, medical experts with experience in SGT, and Shariah experts. The findings indicate that in establishing Malaysian law on SGT, customary beliefs, especially Shariah perspective, must be taken into account, as well as adopting best practices from other developed countries and improving Malaysia's existing law.

THE AFTERMATH OF NIK ELIN: DOES IT AFFECT THE POSITION OF THE MALAYSIAN SYARIAH COURT?

This article examines the ramifications of the recent Federal Court judgment in the case of Nik Elin Zurina Nik Abdul Rashid & Anor v. Kerajaan Negeri Kelantan to the position of the Syariah Court in Malaysia. The judgment of the case witnessed 16 out of 18 provisions of the Kelantan Syariah Criminal Code Enactment 2019 which have been challenged on the ground of unconstitutional be declared null and void by the Federal Court. This has given rise to the state of anxiety and dissatisfaction particularly among Muslims community who feels that the position of the Syariah Court has been degraded. The study employs qualitative study in analysing relevant materials that comprised of statutory laws, journal articles and cases law relating to the issue of constitution and conflict of laws. The finding shows that the verdict made by the Federal Court in Nik Elin’s case does not affect the position of Syariah Court in Malaysia since it has nothing to do with the issue of Islamic doctrine. Thus, this article concludes that in the process of making laws, legislative bodies must always have the power and competency to do so in the spirit of preserving the supremacy of the Federal Constitution as the highest law in Malaysia.

في ماليزيا: دراسة تحليلية تطبيقية (GLC) الزكاة على الشركات المرتبطة بالحكومة

This paper explores the obligation of zakat on Government Linked Companies (GLCs), highlighting a disparity where most zakat is collected from salaries despite business taxes constituting over half of Malaysia’s tax revenue. The study aims to identify the shariah ruling concerning zakat on GLCs, by examining the requirements for zakat on both the payer and the wealth. It includes an analysis of Malaysian laws and fatwas related to zakat on GLCs, assessing the current applications and the feasibility of enforcing it on these entities. The study finds that al-fuqaha’ disagree on the obligation of governments to pay zakat on investment funds, with a majority deeming them exempt, while a minority advocate for their zakat obligation. The dispute arises from varying interpretations of zakat eligibility for certain types of governments’ wealth. Despite this, several Malaysian states have issued fatwas that seems to support the minority view. However, the enforcement of these rulings may be unconstitutional, due to some misalignments between state authority over zakat and federal authority over corporations

Compliance towards the Malaysian Laws on Poisons and Sale of Drugs: A Retrospective Observational Study in the state of Sarawak

Abstract Introduction: Compliance with the laws and regulations on the sale and supply of medicine ensures that it is conducted safely and professionally. Objectives: This study identify the compliance rate of community pharmacists and general practitioners in the state of Sarawak towards the Malaysian Laws on Poisons and Sale of Drugs and review the effect enforcement actions taken by the Sarawak Pharmacy Enforcement Branch. Methods: A cross sectional study where the data were extracted retrospectively from the annual inspection reports on community pharmacists and general practitioners conducted by the Sarawak Pharmacy Enforcement Branch from 2016 to 2020. Data were extracted using a self-developed data collection tool by trained enforcement officers. Overall, 50 criteria were examined but 24 more criteria were also examined for community pharmacists. Results: The compliance rate of community pharmacists has improved slightly from 58.6% in 2016 to 61.1% in 2020. Meanwhile, the compliance rate of general practitioners improved drastically, from 35.9% in 2016 to 71.2% in 2020. The recording provision on the supply of substances containing Codeine, Dextromethorphan, Ephedrine, and Pseudoephedrine (12.3%-24.1%) and of the Prescription Book (7.7%-27.6%) were the most common non-compliance recorded for all the 5 years among community pharmacists and general practitioners, respectively. Enforcement action “issuance of warning letters” found to induced major (79.6%) improvement in the compliance rate. Conclusion: The compliance rate of community pharmacists and general practitioners has improved throughout the years. The highest non-compliance rate was towards the recording provision on the supply of medicine. Constant assessment of compliance rate as well as the effectiveness of enforcement actions must be done regularly. Keywords: Community pharmacists, General Practitioners, Malaysian Laws on Poisons and Sale of Drugs, Compliance

Al-Fatani's Perspectives on Islamic Family Law: Insights from Hidayah Al-Muta’allim Wa’Umdah Al-Muta’alim

The evolution of Islamic Family Law in Malaysia is a nuanced amalgamation of Malay customs, cultural influences, and Islamic jurisprudence. Rooted in the history of Malaya, the formation of current Islamic Family Law reflects the fusion of these elements. This study delves into Daud Abdullah Al-Fatani's seminal work Hidayah Al-Muta’allim Wa’Umdah Al-Muta’alim, a pivotal contribution to Malaysian Islamic jurisprudence. Comparing Al-Fatani's insights with those of scholars from diverse schools of thought and contemporary Islamic Family Law enactments, the focus remains on key issues such as Zihār, Khiyar, and Nusyuz. The study reveals that Al-Fatani's perspectives transcend strict adherence to the Al-Shafi‘i school, while aligning with the Islamic Family Law (Federal Territories) Act 1984. His views on marriage dissolution and wife’s disobedience are influenced by Malay culture, while maintaining fidelity to the Qur’ān and Sunnah exemplified by his stance on Zihār. This resonates in Malaysia's current Islamic Family Law which is not rigidly bound to the Al-Shafi‘i school but intricately considers cultural conditions.

Comparative Study of Indonesian and Malaysian Immigration Action Policies Towards Immigration Permit Abuse

The era of globalization, driven by advancements in science and information technology, has created a borderless world, transforming human relationships from national to international, and significantly impacting various aspects of human life. Globalization has promoted the movement of people between countries, including Indonesia and Malaysia, affecting the demographics, economy, culture, and social aspects of both countries. In this context, immigration regulations play a crucial role in controlling the flow of people and reflecting a country's legal sovereignty within its territorial boundaries. This study is a normative juridical research focusing on the analysis and comparison of immigration regulations and policies in Indonesia and Malaysia, using a Statutory and Comparative approach. Indonesian immigration policy, regulated in Law Number 6 of 2011 on Immigration, focuses on controlling the flow of people entering and leaving Indonesian territory to maintain state sovereignty. Meanwhile, Malaysian immigration policy, regulated in Malaysian Law Number 155 of 1959/63 on Immigration, covers crucial aspects such as entry and exit requirements, monitoring of foreigners, and law enforcement related to immigration violations. The immigration action policies of Indonesia and Malaysia towards immigration permit abuse have several similarities and differences. Although both countries have similar policies in handling immigration permit abuse, the implementation and law enforcement may differ depending on the specific context and conditions in each country.

An updated ecotoxicological evaluation and health risk assessment of metal contaminants in Perna viridis mussel harvested on March to August 2018 from Pasir Gudang Coastal Area, Malaysia

Perna viridis (P. viridis) is a significant protein source globally but is often contaminated by metals due to its filter-feeding behavior. Given that Kampung Pasir Puteh, Pasir Gudang (Johor) is Malaysia's primary P. viridis harvesting site and the last health risk assessment (2015) was incomplete, the metal contamination status remains uncertain. Graphite furnace-atomic absorption spectroscopy was employed to analyze metal contaminant concentrations in P. viridis samples collected from March to August 2018, as per Malaysian legal requirements. The R2 values varied between 0.9976 and 0.9980 for P. viridis mussels and between 0.9976 and 0.9999 for seawater. The recovery for P. viridis mussels and seawater ranged from 93.95% to 106.80% and 92.73–108.84%, respectively. Precision and accuracy for both intra and inter-day measurements ranged from 0.15% to 5.49% for P. viridis and 0.05–5.58% for seawater. The concentrations of metal contaminants in P. viridis varied significantly among the different months of sampling (p < 0.05). All P. viridis samples had higher concentration of arsenic (3.16–75.80 μg g−1) than that prescribed by the Malaysian law. Higher cadmium concentration was observed during July (2.12 μg g−1) and August (2.05 μg g−1) alone. With target hazard quotients and hazard indices > 1.0, the likelihood of negative health impacts from consuming these mussels cannot be ignored. TCR values for As and Cd exceeded USEPA standards, indicating a potential lifetime carcinogenic risk from continuous P. viridis consumption. Pb (21.20–49.28 µg L−1) in all surface seawater samples was invariably higher than the allowable limit for Class 2 water areas. Metal contaminant concentrations varied significantly between P. viridis and surface seawater (p < 0.05), implying inconsistent bioaccumulation due to pollution differences. Given the significance of P. viridis mussels, concerted scientific efforts are essential to devise effective metal contaminant removal methods.

DATA BREACHES EXIT STRATEGY: A COMPARATIVE ANALYSIS OF DATA PRIVACY LAWS

Data has become highly valuable in the era of digitalisation and is the main target of cybercriminals. Cybercriminals steal data by exploiting system vulnerabilities. The rise of catastrophic data breach incidents affects business operations, reputation and legal standing, leading to business disruptions, financial loss and reputation damage. These incidents have raised data security concerns. The frequent incident is partly due to insufficient security measures in place. This article employs doctrinal research focusing on legal principles based on legislation to analyse Malaysia’s legal framework for protecting personal data in Malaysia and a comparison with other jurisdictions, i.e. the European Union General Data Protection Regulation (GDPR), the Singapore Personal Data Protection Act 2012 and the China Personal Information Protection Law (PIPL). The findings show that Malaysia’s data protection laws fall short of the international norm in some areas. This article suggests that Malaysian policymakers may amend the Personal Data Protection Act 2010 to align with international data protection standards to strengthen data security measures in preventive, detective and responsive data breaches. Consequently, this article provides an analysis of data protection laws in Malaysia and compares them with other advanced jurisdictions. It offers valuable insights into the challenges and opportunities involved in safeguarding personal data, the legal framework, and organisational strategies related to data privacy and security.

Legal Protection of the Rights Children Born Out of Wedlock: A Comparative Study in Indonesia and Malaysia

Children born out of wedlock have the same human rights as those born within a legitimate marriage. This research aims to discuss how the law can play a crucial role in providing strong protection for the rights of children born out of wedlock, comparing legal regulations in family law between Indonesia and Malaysia. The research utilizes normative method of comparative legal analysis to examine regulations related to the legal status of children born out of wedlock within the legal systems of Indonesia and Malaysia. The results of this research indicate that in Indonesia, the protection of children born out of wedlock in terms of their rights can be fulfilled by both parents, and a child born out of wedlock can be acknowledged by the father as long as it can be substantiated through scientific knowledge or concrete legal evidence. Conversely, in Malaysia, the decision regarding the lineage of a child born out of wedlock lies entirely with the mother and her family, following the Shafi’i school of thought, and this has not changed to date. As a consequence, children born out of wedlock in Malaysia may lose their civil rights, including financial rights, custody, inheritance, and other rights from their biological father. Malaysian law also regulates penalties for individuals engaged in relationships outside of marriage to protect their lineage and prevent mixed-race offspring.

A comparative analysis: health data protection laws in Malaysia, Saudi Arabia and EU General Data Protection Regulation (GDPR)

Purpose General Data Protection Regulation (GDPR) of the European Union (EU) was passed to protect data privacy. Though the GDPR intended to address issues related to data privacy in the EU, it created an extra-territorial effect through Articles 3, 45 and 46. Extra-territorial effect refers to the application or the effect of local laws and regulations in another country. Lawmakers around the globe passed or intensified their efforts to pass laws to have personal data privacy covered so that they meet the adequacy requirement under Articles 45–46 of GDPR while providing comprehensive legislation locally. This study aims to analyze the Malaysian and Saudi Arabian legislation on health data privacy and their adequacy in meeting GDPR data privacy protection requirements. Design/methodology/approach The research used a systematic literature review, legal content analysis and comparative analysis to critically analyze the health data protection in Malaysia and Saudi Arabia in comparison with GDPR and to see the adequacy of health data protection that could meet the requirement of EU data transfer requirement. Findings The finding suggested that the private sector is better regulated in Malaysia than the public sector. Saudi Arabia has some general laws to cover health data privacy in both public and private sector organizations until the newly passed data protection law is implemented in 2024. The finding also suggested that the Personal Data Protection Act 2010 of Malaysia and the Personal Data Protection Law 2022 of Saudi Arabia could be considered “adequate” under GDPR. Originality/value The research would be able to identify the key principles that could identify the adequacy of the laws about health data in Malaysia and Saudi Arabia as there is a dearth of literature in this area. This will help to propose suggestions to improve the laws concerning health data protection so that various stakeholders can benefit from it.

Analysis of the Book Madkhal ila Fiqh Al-mihan: Towards the Development of a Model of Employment Jurisprudence in Malaysia

Purpose: This study aims to analyse the Islamic legal principles governing employment as found in the book Madkhal Ila Fiqh al-Mihan and its application in Malaysia. The book Madkhal Ila Fiqh al-Mihan consists of six chapters, all of which are related to the scope of Muslim employment. In Malaysia, the application of work procedures is subject to established laws such as the Employment Act 1955, the Sabah Labour Ordinance, and the Circular on Public Service Progress. However, there are religious issues arising during work that conflict with Sharia, such as the prohibition of performing obligatory prayers by employers, the rejection of fasting-related salary claims, and gender mixing issues between male and female workers. Therefore, the initial investigation in this study is to analyze the significant elements of Islamic legal principles in employment through selected books. This study also constructs a model of Contemporary Employment Fiqh in Malaysia. Methods: The article utilizes a qualitative research design method, with data sourced from selected books, theses, journals, articles, and official portals discussing employment jurisprudence (fiqh). The analysis of this study employs content analysis methodology. The findings indicate the existence of Sharia-compliant working guidelines in the book Madkhal Ila Fiqh al-Mihan, which should be understood by every Muslim. Results and discussion: The results also show that the laws in Malaysia generally align with the principles in the book. Implications of the research: A deep understanding of this matter has a massive impact on individuals, employers, races, religions and countries in the long term, and give positive value in employees to increase productivity and quality of work. Originality/value: Therefore, it is essential for a worker to enliven Employment Fiqh to balance work with the demands of worship to Allah SWT.

Parental Liability Law in Malaysia for Children’s Misconduct: A Legal Overview

This article explores into the evolving landscape of parental liability law in Malaysia by examining its foundations in criminal law, torts, and the Child Act 2001. It also draws comparisons with the United States to shed light on the potential prospects for reform in Malaysia. By analysing the Malaysian legal framework, which includes provisions from the Penal Code, Child Act 2001, other statutes, and Islamic jurisprudence, the article uncovers the existing contours of parental liability and highlights areas where clarity and refinement are needed. The study emphasises the need for a balanced approach that holds parents accountable for their children's actions without imposing unjust or excessive penalties. Drawing from the comparative analysis with the United States and Islamic viewpoints, where parental liability laws vary across states, the article showcases the diverse approaches taken to address similar issues. Lessons learned from the U.S. experience offer valuable insights for Malaysia as it seeks to modernise and adapt its parental liability laws to contemporary family dynamics and societal challenges.

ISU UNDANG-UNDANG PENGINAPAN KEDIAMAN JANGKA PENDEK (STRA) DI MALAYSIA: PENGAJARAN DARIPADA NEGARA-NEGARA ASING

Activities referred to as Short-Term Rental Accommodations (STRA) include operating short-term rentals and listing owner-occupied accommodations on digital platforms such as Airbnb, Agoda, iBilik and Booking.com, among others. However, this STRA service has created various legal issues such as licensing, business registration, security issues and neighborhood disturbance. Currently, there is no specific law regarding the control of STRA, especially Airbnb in Malaysia. Thus, qualitative methods are used in this study using document analysis, especially related laws in Malaysia and in some selected countries. It is recommended that a specific legislation needs to be established to regulate STRA services for the benefit of property owners, tourists and the general public.

Public Health Law In Malaysia And The United States: Comparing Current Applications

Background: The main objective of public health law is to pursue the highest possible level of physical and mental health in the population, consistent with the values of social justice. Aims: To elaborate on Malaysia’s public health laws that share unique commonalities with those of the United States of America, due to both countries’ colonial past as part of the British Empire. Methods: Historical review and analysis of current public health law issues in both nations. Results: The United States of America gained full independence from the British Empire on 3 September 1783, while almost three years later, on 11 August 1786, the Union Jack was raised on the island of Pulau Pinang in Malaysia. When the colonies first formed the United States, there was no national public health law; the American colonies adopted the English laws on the control of diseases. This is similar to Pulau Pinang, after the implementation of the Charter of Justice in 1807. Conclusion: Current applications of the law, which include quarantine, sanitation, disease reporting, and vaccination,exhibit interesting similarities as well as differences between the United States and Malaysia.

Development of Public Health Law in Malaysia

Public health law’s main objective is to pursue the highest possible level of physical and mental health in the population, consistent with the values of social justice. Most public health laws have compounding of offences as their first line with subsequent offences being in the realm of the courts. Public health agencies are the prime mover of public health law after its initial passing, through its enforcement. Public health laws enforced are divided by function, i.e. communicable disease control and prevention, food safety and quality, tobacco products control, drinking water quality control and occupational safety and health. Public health is also ensured by regulation of medical practitioners, and health facilities and services. Local authorities enforce by-laws for health in addition to enforcement of public health laws by the inspectorate units in the district health office. Public health law is an excellent example of law and whole-of-government approach that is most effective when seen and realised by the community itself to be fair and necessary in preventing illnesses and saving lives.

STRATA MANAGEMENT AND MAINTENANCE: A COMPARATIVE ANALYSIS OF MALAYSIA AND SELECTED COUNTRIES

The escalating trend of high-rise strata living, coupled with the evolution of strata law in Malaysia, prompts an in-depth exploration of the strata management landscape in Australia, Singapore, and Hong Kong. This comparative analysis delves into various aspects, including development trends, laws, practices, and issues, offering valuable insights for Malaysia's strata living and building conditions. Many approaches from the selected countries align with Malaysia, while certain aspects warrant further exploration. Specifically, into areas such as the calculation of share value and maintenance fee as well recovery of unpaid fees. Additionally, considering the aging building factor, there's potential to introduce a blueprint or guideline for reviewing maintenance charges and sinking funds and its collection. The long-term strategy for Malaysia involves investing in awareness and facilitating access to information on costs of strata living and building maintenance.