Malaysian Law Research Articles

Extending The Interpretation of “Unfair Terms” in Consumer Protection Act 1999

The contracting parties are bound by the terms of a contract and must have an understanding of the contract they have entered into.The terms of the contract become unfair when they cause a significant imbalance in the rights and obligations of the parties involved in the contract and are only advantageous to one party. In Malaysia, the Consumer Protection Act 1999 (“CPA 1999”) was amended in 2010 to include Part IIIA, a provision for unfair contract terms. In the context of written contracts, all terms must be written in plain and understandable language. The unfair terms are normally found in a standard form contract prepared by one person called the dominant party without allowing any negotiation to the other party. In this situation, the weaker party agrees to the unfair terms because they have no choice. However, if a term is discovered to be unfair in the agreement, the remaining part of the agreement may still be legally binding on the parties in a contract. The objective of this study is to discuss and explore the interpretation of ‘unfair terms’ as provide in the Malaysian Consumer Protection Act 1999 and to suggest for the possible extension to the interpretation of ‘unfair terms’ in Malaysia. This study employed doctrinal legal research by analysing the primary and secondary legal sources. It is hoped to expend on the suggestion for Malaysian law where there are shortcomings and opportunities for improvement.

PERSEPSI PELAJAR BUKAN UNDANG-UNDANG UITM TERHADAP PEMBELAJARAN JARAK JAUH DAN TERBUKA (ODL) BAGI SUBJEK UNDANG-UNDANG KOMERSIAL

Introduction to Commercial Law, LAW 240 is a compulsory law subject that must be taken by students from the Faculty of Accountancy at UiTM Perak Branch, Tapah Campus with the aim of exposing students to the basic concepts of law and overview of commercial law in Malaysia. Online Distance Learning (ODL) was implemented starting from the semester of March 2020 until October 2021 due to the Covid-19 pandemic. This change in the mode of delivery of lecture has been going on for four semesters. Therefore, whether the ODL will be continued for the semester March 2022 vice versa is depending on the Covid-19 pandemic graph and the Malaysian Ministry of Higher Education. The objective of this study is to clarify and discuss the perceptions of non-law students from the Faculty of Accountancy UiTM Perak Branch, Tapah Campus on ODL for the subject of Commercial Law. This study employs qualitative methods through library and descriptive research. Data were obtained through Google Forms because students use digital platforms for ODL due to the current situation of the pandemic. The findings of this study show that ODL doesn’t burden non-law students as than before at the beginning of their online learning.

The role of political marketing and its importance in Barisan Nasional at Malaysia general election

This study discusses the political marketing tools based on the research in Barisan Nasional (BN) at Malaysia general election. According to the Malaysian law, the date of the last election and subsequent election is to be held at 5-year intervals. Thus, after GE12 in 2008, GE13 was held in 2013. Since 1969 from Alliance coalition to 1973 BN coalition never lost a general election in parliamentary constituency. The political tsunami in GE12 BN won 140 seats in Dewan Rakyat out of 222 seats, opposition parties such as Pakatan Rakyat (PR) won 82 seats out of 222 Dewan Rakyat of seats in Malaysia (Election Commission of Malaysia, 2008, 2013, 2018). The GE13 result was almost the same as GE12 in which BN won 133 seats in Dewan Rakyat or 47.38% of the votes. Pakatan Rakyat (PR) won the support for 89 seats in Dewan Rakyat or 50.87% of the votes. This is first time BN won in the general election but with less of the votes. In GE12 and GE13 voters started to support the opposition rather than BN. Specifically, direct voter contact, indirect voter contact, dominant party, party leader, gerrymandering, malapportionment, re-delineation, first-past-the-post system (FPTP) are the political marketing tools implement by BN. This paper discusses about political marketing tools employed by BN during general election. Therefore, this paper can provide information to political parties and help them to identify the suitable political marketing tools for coming elections.

THE IMPLEMENTATION OF EMPLOYEE ASSISTANCE PROGRAM IN MALAYSIA, THE UNITED KINGDOM AND AUSTRALIA IN DEALING WITH MENTAL HEALTH ISSUES AT WORKPLACE: AN OVERVIEW

Workers are currently struggling to cope with assigned tasks. As the workload increases and improperly managed, workers are certainly exposed to work-related stress, which will not only affect their performance, but also their mental health. Employers may implement Employee Assistance Program (EAP) that offers counselling sessions, workshops, support group and others, as a preventive and proactive measure to help their employees to overcome issues associated with work-related stress. Nevertheless, EAP is subject to limitations in terms of its effectiveness, such as its implementation is not optimized by organisations adapting it, and less effective EAP sessions that barely resulted in improvement of workers' mental health. Malaysian law does not stipulate the implementation of EAP in organizations. However, Section 15 (2) of the Occupational Safety and Health Act 1994 impliedly supports the introduction of EAP in Malaysia. The purpose of this paper is therefore to explain how employers in Malaysia should implement EAP to help their workers’ mental health well-being, as well as to compare how EAP is implemented in the United Kingdom and Australia. This paper applies qualitative method, which consist of doctrinal legal research approach to understand the program dealing with mental health. Comparative method will also be employed in order to compare the legal frameworks and programs related to mental health well-being in the developed countries such as the United Kingdom and Australia and this involves examination of the similarities and dissimilarities between situations within the same legal system. This paper concludes that the implementation of EAP in an organization will be able to promote the mental health well being of employees.

Genealogy and Reform of Islamic Family Law: Study of Islamic Marriage Law Products in Malaysia

As an Islamic country, Islamic family law reform in Malaysia is experiencing various dynamics. This article aims to examine the genealogy, reform, and products of Islamic family law in the field of marriage (munakahat) in Malaysia. The authors find that Malaysia’s Islamic law reform is divided into three periods using literature research. In the Malay period, Islamic values were generally embedded in the law in Malaysia. During the British colonial period, English law had dominated and was used as common law, which was absorbed in various legislation and jurisprudence in Malaysia. It was only after independence that efforts to reform and codify Islamic family law began, marked by the stipulation of the jurisdiction of the federal territorial government and the territorial government into thirteen states. The codification of family law began with establishing a committee to amend Islamic law and be guided by other Islamic countries. The authors find four areas of marriage that have been reformed in Malaysia, namely the age limit for marriage, marriage registration, polygamy, and divorce. Among the four areas of marriage law, the authors find slight differences in regulations on the technical and material grounds in each state in Malaysia.

Artificial intelligence in health care: data protection concerns in Malaysia

Abstract • The application of artificial intelligence (AI) has transformed the existing notion of the health care system. The concept of AI is not new, but increasing computational power and big data, the Internet of Things, and advanced analytical power ushers in new opportunities to realize the full potential of AI. Recently, there has been an increased application of AI in the health care system, potentially raising questions about patient safety, privacy, security, and confidentiality, specifically data protection. • The present study focuses on the effectiveness of the Malaysian data protection law in addressing the issue of health data protection in the wake of proliferated use of AI in the health care system. The Malaysian Personal Data Protection Act (PDPA) has to face challenges in applying AI because the data processing mechanism of AI has fundamentally challenged the adequacy and sustainability of present data protection principles and associated rights of individuals. • However, as nearly a decade-old law, the current PDPA requires some amendments to its provisions, for instance, the introduction of the mandatory requirement of data protection impact assessment and privacy by design for high-risk data (ie health data) processing and human involvement in automated decision-making process among others. Besides, ensuring more accountability and transparency on the part of the data users by introducing a comprehensive code of practice about the processing of health data would help data users comply with data protection legislation.

Elections as a means of citizens political education: a comparative study between Indonesia and Malaysia

The purpose of this study is to compare Indonesian and Malaysian elections in terms of (1) legal basis, (2) organizing institution, (3) implementation, (4) political party function, and (5) public participation. It was a library study using a qualitative approach. Documentation was used to gather information. The data were analyzed descriptively using the Miles and Haberman model. The data were collected, grouped, reduced, interpreted, and concluded. The data were interpreted based on concepts, theories, and critical analysis. Cross-checking was used as the data validity technique. The results of this study are (1) Indonesia has hosted 12 elections, some of which have been influenced by political dynamics, including Law No. 12 of 2003 concerning Elections for the 2004 Election, Law No. 10 of 2008, and Law No. 7 of 2017 concerning Elections. Malaysian elections are governed by two laws: (a) the Malaysian Law on General Election Deed 1958 and (b) the Malaysian Law on General Election Error Act 1954. (c) P.U.(A) 293/2002 concerning the General Election (Voter Registration) Regulation last amended by P.U.(A) 106/2012; (d) P.U.(A) 185/2003 concerning Election Regulation (Post Elections) 2003; (e) P.U.(A) 386/1981 concerning General Election Regulations (Execution of Grand Elections) 1981, last amended by P.U. (A) 134/2013. (2) General Election Commission (KPU) is the name of the election organizers, whereas General Election Institute is the name of the election organizers in the New Order Era (LPU). Suruhanjaya Choice Raya is the Malaysian election organizer (SPR) (3) The election system in Malaysia is simpler and more efficient. Malaysia uses the District Election System which is based on the location of the election district, not the population. The election system in Indonesia uses the proportional election system. (4) Malaysia is a constitutional monarchy and adheres to a parliamentary democracy system. Both Indonesia and Malaysia adhere to a multi-party system. (5) The average voter turnout in Malaysian elections is 85 percent, while voter turnout in Indonesia is only 74 percent. In general, Malaysian elections are worse than those in Indonesia. In Malaysia, election organizers tend to favor government parties. Suruhanjaya Choice Raya Malaysia (SPR) barred Diaspora residents in other nations from using the post in 2018, claiming that the Diaspora favored opposition parties.

THE FUTURE OF E-ARBITRATION IN MALAYSIA: PRELIMINARY ANALYSIS ON THE LEGITIMACY OF E-ARBITRAL AGREEMENT AND PROCEDURES

Using electronic technology in the dispute resolution industry has been encouraged globally. Electronic arbitration (e-arbitration) is one of the main online dispute resolution mechanisms, and it should be implemented in Malaysia because of its significant advantages. Unfortunately, the future of e-arbitration in Malaysia is still hazy. Therefore, it is important to examine whether existing Malaysian laws are sufficient to legalise the e-arbitral agreement and e-arbitral proceedings. This article is based on a research carried out for a doctoral degree. Primary and secondary sources were consulted. The novelty of the contribution has provided legal evidence and arguments that the relevant laws in Malaysia were to some extent, modern and advanced to recognise e-arbitration. However, from a purely legal perspective, several gaps should be appropriately addressed by Malaysian lawmakers in order to ensure the sustainable and successful establishment of e-arbitration in the country.

THE PROCEDURES FOR THE COLLECTION OF URINE SAMPLES AND ARREST WITH REGARDS TO DRUG CASES IN MALAYSIA

This research focuses on the position of the relevant procedures concerning an arrest with regards to drug cases in Malaysia. There are three relevant acts that provide for the procedures for arrest concerning drug related cases in Malaysia. They are the Dangerous Drugs Act 1952 (DDA1952), the Criminal Procedure Code and the Drugs Dependants (Treatment and Rehabilitation) Act 1983 (1983 Act). However, there are conflicts between the application and the interpretation of the relevant provisions under each of these Acts by itself. Hence, this article outlines three objectives ie.: (i) to identify the various provisions relating to drug cases in Malaysia; (ii) to identify and analyse the position and the interpretation of the Malaysian criminal procedure law with regards an arrest concerning drug related cases; and (iii) to suggest improvements that can be made to the law governing an arrest relating to drug cases in Malaysia. In order to achieve these objectives, the research used a qualitative approach with pure legal method as statutes and legal cases would be used as primary source. The research found that that the courts cannot come to a conclusion on whether one or two bottles of urine sample is needed for an examination. This research also found that under the 1983 Act, there have been no recent cases that discussed on the procedures for arrest as well as the number of urine samples that needed to be collected as most of the recent cases were to be tried under the DDA 1952. Finally, there are conflicts in determining the manner of arrest relating to drugs cases under the DDA 1952. Thus, this research suggests an amendment to the Dangerous Drugs Act 1952. The issue of how many bottles of urine samples that need to be collected as well as the issue of whether the MOH Guidelines and IGSO have the relevant force of law must be addressed in this amendment. Next, this research also suggests that the 1983 Act be revised as well as updated due to the arising issues as mentioned earlier.

إبرام العقود عبر الإنترنت في الشريعة الإسلامية دراسة تطبيقية Islamic Fiqh and Malaysian Law on Online Contract An Empirical Studyوالقانون الماليزي

إبرام العقود عبر الإنترنت في الشريعة الإسلامية دراسة تطبيقية Islamic Fiqh and Malaysian Law on Online Contract An Empirical Studyوالقانون الماليزي

THE FUTURE OF E-ARBITRATION IN MALAYSIA: PRELIMINARY ANALYSIS ON THE LEGITIMACY OF E-ARBITRAL AGREEMENT AND PROCEDURES

Using electronic technology in the dispute resolution industry has been encouraged globally. Electronic arbitration (e-arbitration) is one of the main online dispute resolution mechanisms, and it should be implemented in Malaysia because of its significant advantages. Unfortunately, the future of e-arbitration in Malaysia is still hazy. Therefore, it is important to examine whether existing Malaysian laws are sufficient to legalise the e-arbitral agreement and e-arbitral proceedings. This article is based on a research carried out for a doctoral degree. Primary and secondary sources were consulted. The novelty of the contribution has provided legal evidence and arguments that the relevant laws in Malaysia were to some extent, modern and advanced to recognise e-arbitration. However, from a purely legal perspective, several gaps should be appropriately addressed by Malaysian lawmakers in order to ensure the sustainable and successful establishment of e-arbitration in the country.

THE LEGAL ASPECT OF ILLICIT ENRICHMENT IN MALAYSIA: IS IT A CRIME TO BE RICH?

The growth of illicit enrichment crime, or living beyond one’s means is a significant challenge in combating corruption. Many countries have shown their commitment towards preventing illicit enrichment crimes by criminalising and penalising illicit enrichment in their laws, including Hong Kong and Singapore. Illicit enrichment is a crime and Malaysia has no clear provisions on illicit enrichment to prevent it. Therefore, this paper analysed the adequacy of Section 36 of the Malaysian Anti-Corruption Commission Act 2009 [Act 694] (MACC Act 2009). The legal framework on illicit enrichment in Hong Kong and Singapore were referred as sources of critique. To achieve the said objective, this study adopted a doctrinal approach using qualitative research methodology. The scope of the paper is limited due to the inadequacy and indirectness of the law on illicit enrichment in Malaysia. This paper critically analysed the international framework of illicit enrichment and conducted a comparative analysis of the law in Hong Kong and Singapore, namely the Prevention of Bribery Ordinance and the Prevention of Corruption Act 1960, respectively. In conclusion, this paper found that the current law in Malaysia is inadequate and Malaysia can learn to adopt the said laws as provided in Hong Kong and Singapore. This study serves as a guide for legislators intending to address the current inadequacies of the law on corruption in Malaysia, equipped with better knowledge on the characteristics of illicit enrichment. Suggestions to address the issues are proposed.

Democratizing the Enforcement of Environmental Laws in Malaysia: The Rule of Standing (Locus Standi) and Other Common Law Procedural Obstacles to Public Interest Environmental Litigation

Democratizing the Enforcement of Environmental Laws in Malaysia: The Rule of Standing (Locus Standi) and Other Common Law Procedural Obstacles to Public Interest Environmental Litigation

LEGAL ISSUES OF WORKING FROM HOME AMID THE COVID-19 PANDEMIC IN MALAYSIA

Flexible work arrangements are common during the COVID-19 pandemic as a result of the movement restriction and the closure of the economic sector. Among the flexibility practices is the implementation of remote working, in particular, working from home (WFH) where employees are physically working outside and remote from their organisations. The mandated WFH has changed the working scenario without confirming whether employers and employees are prepared for this new norm. However, the WFH arrangement requires legal consideration as its arrangement needed a legal predicament. The concern over WFH must be addressed on the grounds of managerial rights and boundaries besides determining the rights of employees while working remotely. From the legal viewpoint, there is a question of whether the existing labour law in Malaysia is accommodating to the WFH practice. Hence, this paper aims to examine the employment-related matters concerning WFH practice in Malaysia on employment terms like wages and leaves, matters on safety and health, social security, and confidentiality and security of information. This study applied a doctrinal approach using authoritative legal texts in solving the legal problems that arise from WFH. The analysis of legal provisions and case studies were employed to present the benefits of the employment relationship and industrial relations in the changing employment landscape and work culture linked to WFH.

TRANSBORDER DATA FLOWS

Medical tourism is popular within the Association of Southeast Asian Nations (ASEAN) region, especially in the Indonesian region. The economic prosperity, closer vicinity as compared to Jakarta, and the quality of medical services provided in the neighbouring countries lead to medical tourism prospering among the Indonesians. Malaysia is one of the most frequently visited countries by Indonesians as medical tourists. The growth of medical tourism triggers issues of the adequacy of the Indonesian and Malaysian laws to regulate cross-border medical records. It is the aim of this study to examine the adequacy of the current laws in handling cross-border medical records. This study applied doctrinal legal research methodology, i.e., mainly library-based research, where the main legal materials were from Malaysia and Indonesia. It was found that the need for personal data protection is a necessity since boundaries among jurisdictions are becoming “borderless”. The Malaysian law, although comprehensive, has yet to gazette any country as a “whitelisted country” to allow for cross-border data. The Indonesian law does not regulate crossborder medical records. The risk of personal data leakage has become imminent. The importance of cross-border medical records protection is important to create safe integrated medical records. While Malaysia has enacted a comprehensive legal framework on personal data protection (including medical data), Indonesia needs to enhance its legal framework in protecting the data. Regionally, the legal framework of cross-border personal data between Malaysia and Indonesia should be updated in accordance with the ASEAN Data Management Framework.

Negative Sides of State Professor Council (HDGSNN) with Criminal Case at Banking University HCM City Vietnam – and Applying Malaysian Privacy Law Approach as Reference for dealing with False News of Tuoi Tre and Thanh Nien Newspapers in Vietnam

In this study, we highly criticize publishing fake news online of several Vietnam magazines (Thanhnien.vn and Tuoitre.vn) as it may cause misinformation and troubles, anxiety in society. Next, we show criminal cases at HDGSNN (State professor Council- fake Prof Trần Thọ Đạt), and Nguyễn Đức Trung – fake Rector at Banking University HCM city Vietnam (in hindering scientific researches of scientists), and Lê Đình Hạc – fucking guy, fake Doctor at Banking University HCMC Vietnam. We also use this case to teach social sciences students. Next, authors use Malaysian laws approach for solving FALSE NEWS OF TUOI TRE AND THANH NIEN NEWSPAPERS IN VIETNAM during period 2015-2022. Last but not least, Authors also analyze viewpoints of President Ho Chi Minh on publishing activities for educating students better.

Preliminary Study on Protection of Women’s Social Rights in Prevention of Domestic Violence in Malaysia

Recently, there has been an increase in cases of domestic violence in Malaysia especially during the enforcement of the Movement Control Order (MCO) following the Covid-19 pandemic. Domestic violence in Malaysia is include physical, sexual, emotional, economic or psychological actions or threats of actions that influence another person. Therefore, understanding the current Malaysian and International policy/framework is crucial in protecting women's social rights in preventing domestic violence. Hence, using qualitative methods of research that include content analysis, this paper would also analyse the challenges in the implementation of the current policy or framework in protecting women's social rights in preventing domestic violence in Malaysia. The research finds that, although there are many policies/frameworks provided by international and Malaysian law to prevent the issues of domestic violence towards women, however, the case still increases and women continuously suffer as victims of domestic violence. Therefore, it is suggested that the Government improve the effectiveness of the available mechanisms and frameworks so that women will realise their rights, responsibilities and protection available to them, as well as overcome the problem of domestic violence in Malaysia.

Dento-Legal Issues in Malaysia: A General Guide for Dental Practitioners

Dentistry is a noble profession where dentists often manage to bring smiles and create confidence in patients. Nonetheless, as with other medical professionals, dentists too often encounter legal suits brought against them by their patients. Legal actions against dentists are not new in Malaysia, where several actions have been litigated in court. The rise in legal actions against medical professionals including dentists is associated with the increased awareness of patient’s rights and autonomy. Legal actions can cause several repercussions on dentists such as loss of reputation, shame and anxiety. As such, it is imperative for dentists to have the basic legal knowledge on the potential legal liability that they may face should something go wrong during the course of dental treatment. This is the main crux of this paper where several dento-legal cases that have been reported in Malaysian law journals are identified and analysed. This is followed with a brief discussion on the legal issues surrounding those cases. Legal principles governing the issues identified are provided in brief so as to provide dentists with basic legal knowledge on the legal aspect of dentistry.

The Ruling on Aborting the Fetus and Its Effect on Inheritance: A Comparative Study between the Four Sunni Schools, Indonesian Law and Malaysian Law

Abortion is an act of killing to life which is forbidden in Islam. Abortion gives rise to differences of view among past and contemporary scholars on its enabling and prohibition. So, this study is to examine the views of scholars and laws in Indonesia and Malaysia related to abortion and its impact on inheritance ownership. This situation affects the inheritance of property to the mother from the aborted baby. The method of this study is qualitative descriptive. The approach of this research method is descriptive of content through literature. Books, journals, newspaper clippings, and legal regulations are the premier references to this study. This study finds that there are similarities and differences between sharia law and the rules applied in Indonesia and Malaysia. In terms of similarities, Islamic law and the laws in Indonesia and Malaysia provide for the prohibition of abortion. But, in certain circumstances, the fetus can be aborted for certain reasons, such as harming the mother or for medical reasons. In addition, this study found differences in punishment for women who had an abortion for no valid reason. Therefore, this study reveals the harmonization of Islamic law with the laws conducted in Indonesia and Malaysia. So, this study recommends forming a better in-depth study of efforts to harmonize the larger Islamic law to the rules regulated in Muslim countries.

Punishment for Drunk Driving: A Study under the Malaysian Law

Drunk driving is one of the major concerns that trigger various reactions and views in the community. Like seasonal incidents, the issue has become a matter of contention that needs to be extremely addressed as the number of road accidents involving drunk driving are seen as a serious following the increasing trend of cases. The issue should not be underestimated as it has evoked to bring anger and dissatisfaction in the heart of the public. The amended law, the Road Transport (Amendment) Act 2020, is perceived as adequate to govern the law on individuals driving while intoxicated or inebriated under the influence of alcohol or any intoxicating substance and enforce reasonable and heavier punishment to ensure they comply and adhere to all the rules and regulations fixed by the authorities. However, to what extent the introduction and enforcement of the Amendment Act will guarantee the number of the case will be reduced. This conceptual paper aims to critically discuss on the punishment imposed on drunk driver with reference to the provisions of the above statute. This paper will significantly highlight the issues by gathering the relevant information from journals, articles and previous researches and studies. The finding indicates that by increasing the penalties the drunk drivers are aware of the higher and severe punishment and this is in line with theories of punishment in order to prevent and to deter the offence in Malaysia.