Universiti Putra Malaysia
Download Latest Complete Journal - JSSH Vol. 23 (S) Oct. 2015
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Abstract (Viewed: 31)The formal dispensation of criminal justice in pluralistic legal systems has continued to generate academic interest in the last few decades. This has always been influenced by the colonial and post-colonial historical legal reforms in the African continent. Islamic law has played a very significant role in the evolution of the modern nomenclature of legal systems of some of African countries, particularly the common law-based jurisdictions. The application of Islamic law, particularly its criminal justice component, was relegated to mere personal matters as part of the colonial baggage, and it has been a struggling to re-assert itself in some North, East and West African countries. This article therefore examines the dynamics of the application of the Islamic criminal justice system in Africa and the role of Mufti based on a case study of a recent apostasy case in Sudan. While the case, as well as the decision of the court, cheated a maelstrom of controversy and rekindled the narratives of human rights activists globally on the sacrosanct nature of freedom of religion, Muslim jurists have argued that Islamic law provides punishments for specific offences such as hudud, qisas and diyyah; the rationale behind such punishments is not only to punish the offenders, but also to deter other people from committing the same offence. For apostasy issues, there is a kind of link established between this offence and treasonable felony in Islamic legal discourse, which might warrantcapital punishment. Having reviewed these diverse positions, the article finds that Islamic legal principles and maxims contain numerous principles that should guide the judge in arriving at a decision, particularly when it relates to such a serious offence. This is where the Mufti plays his role in advising the judge on core issues in a case while taking into consideration the context of each case. In the Sudanese case of Mariam Yahia Ibrahim, the trial judge should have looked beyond the content of the statute by seeking further clarifications from a learned Mufti in order to ascertain the social and religious background of the parties involved.Islamic criminal justice system, Role of a Mufti, Apostasy, Mariam Yahia Ibrahim
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Abstract (Viewed: 9)This article discusses issues related to custodial sentences. It addresses jurists' arguments against these sentences on the ground of their inconsistency with the aim of criminal justice. The article is more concerned with the Muslim jurists' position; hence, it focuses on examining the consistency of custodial sentences with Maqasid al-Shariah to determine their appropriateness to the enforcement of criminal justice and the safeguard of public interest. It also assesses the consistency of this concept with the philosophy of Islamic criminal law and the viability of its application in light of the concept of crime and punishment. For this purpose, the article defines custodial sentences in contemporary legislations. It then analyses the concept of imprisonment in the Quran and the Sunnah, and the practices of the Companions. It also assesses the impacts of custodial sentences in modern practices with the aim to identify the conditions and parameters for alternatives to these custodial sentences within the framework of Maqasid al-Shariah in general, and the maqasid of punishments in particular. The article found that although considered as necessary to establish justice and protect society, custodial sentences are not in line with the Shariah principals and objectives. It also proposes a number of Maqasidi-driven parameters that serve as building blocks for the implementation of alternative custodial sentences.Islamic law, Criminal justice, Custodial sentences, Maqasid al-Shariah and Freedom
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Abstract (Viewed: 5)The enforcement of Shari'ah criminal offences in Selangor has always been subjected to public scrutiny. The commission of selected Shari'ah criminal offences has been rigorously enforced against by the Religious Enforcement Division of the Department of Islamic Affairs. Alas, there are times that the manner in which the enforcement has been carried out has led to public criticism. This article studies the power of the enforcement officers, the modus operandi of enforcement and the challenges faced by the Selangor Religious Enforcement Division. Using a mixed mode of content analysis and personal observation, the article argues that there is still much that needs to be done to improve the image and modus operandi of the enforcement of Shari'ah criminal offences in Selangor specifically and in Malaysia generally.Shari'ah criminal offences, Enforcement, Selangor, Religious Enforcement Officer
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Abstract (Viewed: 4)The law of qisas is a concept under Islamic law which allows the victim who has been physically hurt by an offender or the heirs of the deceased to a murder to play a role in determining the fate of the offender once he is found guilty. This includes the ability to choose whether to opt for equal punishment (qisas) or to demand monetary compensation (which is diyat), or to forgive the offender altogether. This article concentrates on the concept of forgiveness in qisas involving murder. The aim of the article is to show that contrary to popular criticism, the law of qisas is not about revenge. This is proven by the choice of forgiving the offender in total for the hurt or even life that he has taken. If compared to the current position in Malaysia, the right to forgive an offender is not given to the heirs of the decease but instead, it is given to the Yang di-Pertuan Agong or the Ruler of ALL States. This goes against the rights of the victim's heirs who not only is deprived of any compensation but also deprived of seeing justice done for the deceased. Malaysia is taken as an example of a modern country and the criminal law practised here is similar to many modern countries such as Singapore and India. Hence, this article submits that this concept of forgiveness should be revisited and re-applied to allow the victim or his heir(s) to decide the fate of the offenders instead of merely leaving it to the Rulers. This submission is arrived at after critically analysing primary sources being the injunctions in the Holy Qur'an and secondary sources that have interpreted its application. Meanwhile, the Malaysian position is examined in light of the Penal Code and the right to forgive as provided by the Malaysian Constitution.Concept of forgiveness, qisas, Islamic criminal law, diyat.
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Abstract (Viewed: 11)Islamic institutions including courts and fatwa have been in existence in Nigeria since the advent of Islam in the country. While the courts were established in order to adjudicate between disputant parties, Muftis were also used as assessors (court officials) responsible for assisting the courts in dispensation of justice. When the colonial administrators came, they introduced their legal system to the colonies, which led to a gradual wipe away of some aspects of the Islamic legal system (including the courts and fatwa institutions). The doctrine of the tripartite tests (i.e., the repugnancy test, incompatibility test and public policy test) was introduced into the country's legal system to the extent that the full and hitherto application of Islamic law was modified and some were suspended. Muslims are left with only matters related to civil causes and personal matters. Islamic jurists such as Muftis become functus officio in the Shari'ah Courts. In view of this, the paper explores the possibility of finding an avenue on how to revive the past glory of Muftis in the Nigerian judicial system. Thus, it sets out some modalities on how fatwa can be streamlined to achieving this objective. One of such modalities is to institutionalise fatwa in the country.Shari'ah Court, Role of a Mufti, Nigeria, Judiciary
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Abstract (Viewed: 20)Islam prohibits all acts that endanger the life of a child or exposes children to abuse including dumping of babies. Those acts are crimes punishable under the law. In a similar vein, internationally, baby dumping and all acts that expose children to danger are prohibited under the United Nation's Convention on the Rights of the Child 1989 (CRC). Malaysia and Nigeria, like most nations of the world, are signatories to most international legal frameworks on child protection including the CRC. In Malaysia and Nigeria, baby dumping is an alarming phenomenon. Many babies suffer or even die as a result of the act of baby dumping. This article intends to examine the laws relating to the protection of babies from dumping in Malaysia and Nigeria. Discussions will include the position of baby dumping in Islam to serve as a comparison. Examination will extend to analysis on whether the laws in Malaysia and Nigeria are adequate to address the problem of baby dumping and to fully protect children from baby dumping. The study is basically a library based research where reference is made to books and articles. A comparative legal research methodology is employed in looking at the positions in Islam, Malaysia and Nigeria. It is hoped that the findings on child protection laws, particularly those related to baby dumping in the Islamic, Malaysian and Nigerian laws, will provide better protection for babies and prevent them from being dumped.Baby Dumping, Islamic Law, Malaysian Law, Nigerian Law
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Abstract (Viewed: 11)The downing of Malaysian Airliner MH 17 is not the first incident of shooting down a civilian airliner. There are several other cases where civilian aeroplanes carrying passengers were shot down. The case of MH 17 is a recent incident that attracts condemnation from the international community. MH 17 was shot down within the territorial air space of Ukraine, an area under the control of the separatists who are fighting against the government of Ukraine. It was alleged that the airliner was downed by the separatists who are enjoying the support of the Russian government. The same accusation is levied against the Ukrainian government. Thus, this article examines the shooting down of the Malaysian airliner MH 17 and determines who should be responsible for the heinous crime. It examines whether the conflict in Ukraine amounts to an international armed conflict under international humanitarian law (IHL) which can be linked with the downing of MH 17. The article further examines the probable responsibility and jurisdictional problems to be faced in prosecuting the crime of shooting down MH 17 and the possible claims for compensation to the victims' family. The article posits that the situation in Ukraine is indeed an armed conflict and the shooting down of Malaysian airliner MH 17 constitutes a war crime of targeting civilians as envisaged under the Statute of the International Criminal Court (ICC). The jurisdictional problems in prosecution of the crime may be addressed by invoking universal jurisdiction. It is recommended that an international criminal investigation should be launched on the downing of MH 17 in order to find the culprits responsible for the crime for the purpose of subsequent prosecution for war crimes and compensation claims.MH 17, Ukraine, Civilians, Armed Conflict, War Crime
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Abstract (Viewed: 7)Terrorism is nothing new in present situations all over the world. Though there are different political manipulations of its definition, terrorism is a menace that affects the whole world at large. Boko Haram, a terrorist group based mainly in Nigeria started its first attack in 2004, and it has since been responsible for thousands of deaths of both Muslims and Christians in the country. The terrorist group is said to be demanding the adoption of the Islamic system of government and as a result has bombed many churches and schools. In 2011, the terrorist group attacked the United Nations Office in Abuja with the aid of one of its suicide bombers. The terrorist activities of Boko Haram in Nigeria have been under the purview and preliminary criteria known as preliminary investigations as carried out by the Office of the Prosecutor of the International Criminal Court since 2010. The Office of the Prosecutor came out with a report in 2013 that concluded there is a reasonable basis to believe that Boko Haram has been committing crimes against humanity of murder and persecution since July 2009. However, up until date, despite the abduction of over 300 schoolgirls by the terrorist group, the Nigerian government has not been able to bring the girls back or prosecute the perpetrators. When a State party to the Rome Statute has some form of armed conflict going on in its region, a referral may be made to the ICC to intervene. However, it must first be determined whether the crimes committed are those within the court's jurisdiction and also whether the situation is admissible especially with regards to the complementary criteria as provided for in the Rome Statute. This paper will look into the admissibility of the Boko Haram situation and whether the International Criminal Court has jurisdiction over the crimes committed.Boko Haram, International Criminal Court, Jurisdiction, Admissibility, Rome Statute, Preliminary Examinations, Investigations, Office of the Prosecutor
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Abstract (Viewed: 9)This article is a doctrinal legal research that employs comparative approach to analyse and explore employee whistleblower protection in Malaysia and Nigeria and under the common law as well. Employee whistleblowers who reported the misconduct of a fellow employee or superior within their organisation frequently face reprisal or retaliation, sometimes at the hands of the employer or the group which they have accused. While the article considered related instruments in the two countries under consideration in the analysis, the focus is on the Whistleblower Protection Act 2010 (WPA, 2010) and the Whistleblower Protection Bill 2011 (2011 Bill) in Malaysia and Nigeria, respectively. The article finds that the bulk of the present regime of whistleblower protection in Malaysia is contained in WPA 2010. The common law applies subject to the Act and other restrictions under the legal system of the country. In the case of Nigeria, on the other hand, as the 2011 Bill is still pending, the common law applies generally in guiding whistleblower protection in the country. The article further finds that the concept of whistleblowing is wider in common law than under the WPA 2010 in Malaysia or the 2011 Bill in Nigeria. The conclusion of the article is that while legislation is desirable for the promotion of whistleblower protection in the countries under consideration to accord protection against the fluid position of common law, the legislation should not be unduly used to limit the scope of the protection such as in terms of defining the authorities to whom the disclosure is to be made as suggested by both the WPA 2010 and the 2011 Bill and classification of persons that can make disclosure as in the 2011 Bill and which is not in line with the modern trends in whistleblowers protection.Whistleblower; disclosure of; protection; malpractices
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Abstract (Viewed: 11)The governing law on the administration of estate in Malaysia requires an appointment of a personal representative before a deceased's estate can be dealt with. The personal representative acts as a fiduciary and is empowered to take possession and control over of the estate. However, in the hands of an unscrupulous personal representative, the estate might be dishonestly used or misappropriated. In such a case, the personal representative could be charged for criminal breach of trust, as provided by the Malaysian Penal Code and would therefore be punished with imprisonment, whipping and fine. This article aims to examine whether such punishment is adequate in regulating the conducts of the personal representative and remedying the estate beneficiaries against the misconducts of such personal representative. The study adopts a doctrinal analysis by examining the existing primary and secondary materials including statutory provisions as provided in the Probate and Administration Act 1959 (Act 97) and the Penal Code (Act 574), case law and other legal and non-legal literature relating to the adequacy of the relevant law. The article finds that once the estate has been misappropriated, charging the personal representative and punishing him for criminal breach of trust are inadequate and will not give much benefit to the estate beneficiaries. The punishment should be extended to depriving the personal representative of his own property so that the rights of the estate beneficiaries as the vulnerable party are better protected. Criminal breach of trust, estate beneficiaries, deceased's estate, breach of fiduciary duty, personal representative, remedy
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Abstract (Viewed: 9)Information Communication Technology (ICT) facilitates abuse and exploitation of children online, especially child pornography. A study conducted by the Internet Watch Foundation showed that ICT is responsible for the mushrooming of child pornography into a fast growing business and there is evidence to show that the victims of this abuse are getting much younger. Realising the severity of the threat, various conventions and conferences have been held to address the issue and discuss the methods in combating the problem. For example, the Cybercrime Convention criminalises all related acts of creating, producing, disseminating and possessing of any child abuse images. Similarly, various initiatives have been adopted to combat commercial and non-commercial sexual exploitation of children, particularly the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (OPSC). At the national level, countries such as the UK, US and South Korea have enhanced their laws and legal mechanism to safeguard children against these ICT facilitated crimes in line with the international conventions. Based on a comparative analysis, this paper aims to highlight the threat and how the three countries are addressing the problem and analyses the legal position in Malaysia in addressing and combating the use of ICT to commit crimes against children. Child pornography, online risks, online violence, abuse and exploitation, ICT crimes against children.
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Abstract (Viewed: 3)Electronic evidence is one of the many forms of documentary evidence. It is stored and retrievable from electronic devices such as computers and smartphones, particularly in the their hard disks or memory banks. However, due to the fragile nature of electronic evidences, it is prone or susceptible to damage or alteration, as well as destruction due to improper handling or safe keeping. Since it can easily be tampered with or self-deteriorate, establishing the authenticity and reliability of electronic evidence is a technical task. Meanwhile, states of affairs would cause such electronic evidence to be inadmissible or carries low or no weightage whatsoever by the court, thus undermining the prosecution's or the plaintiff's case, as the case may be. In order to ensure such evidence is admissible and carry the expected weightage, relevant parties must first prove the authenticity of such evidence and subsequently on its reliability and relevancy. Nevertheless, in cybercrime cases, proving the crime is actually a technical challenge, where the responsible personnel are required to understand what is electronic evidence, how to extract and preserve the originality of such evidence and the laws governing electronic evidence, as well as cybercrimes. This article attempts to explain the scope of electronic evidence in relation to criminal cases such as in cybercrimes, as far as its admissibility and weightage are concerned. The discussion will be based on Malaysian and common laws. Authenticity, cybercrime and electronic evidence
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Abstract (Viewed: 10)Identity theft is one of the crimes that threaten both society and individuals. Millions of people have been badly affected by identity theft following misuse of their identities by criminals. The term 'identity theft' is used to include all illicit activities (gathering, utilising, buying selling, etc.) that target personal information (including natural and legal persons). Identity theft is not a new crime, and it has grown and become a major concern in the era of information. Around the globe, laws and regulations have been enacted and revised to accommodate the phenomenon. Based on the divine rules of Islam, the Shari'ah has its own formula and perspectives on matter such as identity theft. This paper attempts to define the term 'identity theft' and then recollect and examine some of the Shari'ah rules related to the crime in general and discuss their applicability to this insurmountable matter of identity theft so as to demonstrate solutions that can be offered to Muslim-populated jurisdiction. It is a doctrinal rather than empirical study, therefore, it attempts to explore the Shari'ah rules based on the primary sources of Islam, i.e. the Qur'an and the prophetic traditions (hadith), as well as the juristic opinions of prominent Muslim scholars. The study finds that the Shari'ah law is very resourceful with principles and theories on which laws on identity theft can be established. This paper demonstrates another area where the Shari'ah should be further explored to answer to the challenges of contemporary society. It is argued that a study such as this will positively contribute to the field of justice as it looks at identity crime from another approach and also suggests further research to help alleviate identity theft especially in the Muslim communities.Identity theft, fraud, Islamic criminal law
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Abstract (Viewed: 22)An act can only be regarded as a crime if its exercise can cause harm to others. On that basis, many activities that usurp copyright and can possibly pose harm to the society have been criminalised. In relation to traditional cultural expression, model laws such as the World Intellectual Property Organisation (WIPO) Draft Articles on the Protection of Traditional Cultural Expressions (2011), WIPO-UNESCO (the United Nations Educational, Scientific and Cultural Organisation) Model Provisions for National Laws on the Protection of Expression of Folklore Against Illicit Exploitation and Other Prejudicial Action (1982) and the South Pacific Model Law for National Laws (2002), as well as some national laws of the United States of America and the Philippines have criminalised certain acts constituting the misappropriation of traditional cultural expressions (TCEs). TCEs or expressions of 'folklore' are considered by many developing countries as part and parcel of their cultural fabrics and their misappropriation as 'harmful' not only to the right holder's interest but also to the country. To that extent, the misappropriation of TCEs must be criminalised. This paper commences with an examination of copyright protection over TCEs in Malaysia with a view to assessing the adequacy, relevancy and efficacy of criminal sanction and ensuring effective enforcement against misappropriation of indigenous TCEs. The article also examines national initiatives on TCEs, particularly countries that have criminal provisions on certain activities involving TCEs. To lend support for criminalisation, the article further revisits the initiatives of WIPO and UNESCO. The article concludes that introducing some form of criminal offences within the context of copyright law is possible either through the extension of the existing criminal pro visionsor by having a special part dealing only with misappropriation of TCEs.Copyright, infringement, criminalisation, traditional cultural expression (TCE)

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