Mediation in the Syariah Courts:An Empowering Alternative for Amicable Resolution in Syariah Disputes
Mediation in Islam (Sulh) is an ancient idea but it is still relevant to our current needs.
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Mediation, also known as Sulh or Wasaatah in classical Islamic text, is not a foreign concept in the Islamic legal system as sources of Islamic law have consistently encouraged the endeavour for amicable settlement. In promoting peaceful conflict resolution, Muslim scholars have introduced approaches that are both systematic and fact sensitive.
Does an agent provocateur need to be corroborated under the law?
Does Malaysia have an intelligence agency like the CIA or MI6? States usually have their own method of operative centre for matters of intelligence and espionage. What if James Bond was an agent of our own intelligence agency? He would most certainly be an agent provocateur, or in other words, a spy, and not merely an informer. That being said, let there be a hypothetical situation in which Mr Bond and friends were to fumble and be called in the Malaysian courts – does Mr Bond then require corroboration for the evidence given during his testimony before the court? Surely this has never happened in the British film series – having the greatest spy of all times to testify in court as a botched operation always gets concealed in the end. However, in reality, case laws have established on whether it is necessary to corroborate an agent provocateur and an informer. This article provides a comparative analysis of the legal positions in the jurisdictions of Malaysia, United Kingdom and Singapore.
The protection of freedom of information is still indeterminate in Malaysia
As the popular saying goes, “the control of information is the tool of the dictatorship.” Further reiterated by the European Court of Human Rights, it is undisputable that access to information is crucial to the notion of transparency and good governance.
The right to freedom of information is important for the access to government-held information, which concerns public interest. It is not only a right guaranteed under multiple international declarations and covenants, but also a limb to the coveted right of freedom of expression. Information relating to corruption of public officials, government development projects, embezzlement of public funds by officials, et cetera will not be available to the public without the right to freedom of information. This right is crucial for journalists worldwide as it champions press freedom and its power to report on any matter which the public has the right to know. With that, the public is empowered to monitor the integrity of the government and is assisted in making an informed choice in elections upon their scrutiny of government integrity.
Despite international recognition, the protection of such a right in Malaysia is still indeterminate. A 1999 resolution endorsed by the Commonwealth Heads of Government, with Malaysia included, declared that the right to freedom of information should be guaranteed as a legal and enforceable right. Malaysia is also a signatory to the ASEAN Declaration of Human Rights (ADHR) which endorses all rights stated under the UDHR, thus impliedly recognising the right to freedom of information. However, the position taken by the legislative and the judiciary proves the contrary.
E-commerce is a new form of business which heavily incorporates technology, and lawmakers need to keep up by enacting laws which are able to adapt in order to curb arising legal concerns.
I. The Evolution of Electronic Commerce – A Brief Introduction
We live in an era where almost everything is available in a digital form or at least undergoing a phase of digitalisation process. What digitalisation process simply means is that despite atoms can construct almost everything in the physical world, from a human kidney to a high speed train, bits, on the other hand, is the basic fundamental block of the digital world. The revolution of digitalisation started in the early 1980’s. The revolution was triggered as computers started moving into homes from workplaces and research laboratories. The first ever conventional media that embarked into, and adopted digitalisation, was the music industry on a business and logical sense that information converted from atoms to bits are generally cheaper to store and encode while significantly reducing the distribution cost.
Technological advancement has grown and is continously growing on a rapid scale in recent years. This plays a direct link to the survival of most businesses. The most recent would be the fall of Nokia which has been successfully acquired by Microsoft. The direct and most apparent contributor to the acquisition was said to be the failure of Nokia to learn and keep abreast with technological changes that has led to their failure to survive.
The Employment Insurance System Act 2017 (EIS) is an Act that aims to encourage the employees to seek re-employment apart from strengthening their employability in the labour market through placement programmes.
In 2015, more than 44,000 workers were retrenched due to various factors such as restructuring of the finance institutions, falling in the crude oil price and unstable ringgit currency. In 2016, approximately 38,000 workers had lost their jobs with the majority of the lay-offs in manufacturing, trading, wholesale and retail, mining and finance sectors. As a trading nation with an open market economy, Malaysia is no exception to the impact of shift in the economic structure from traditional economy to knowledge-based economy. Loss of employment, especially among low-skilled workers and labour-oriented industry is unavoidable. Among the Association of Southeast Asian Nations (ASEAN), only Thailand, in 2004, and Vietnam, in 2009, had established an unemployment insurance scheme.
The existing Employment Act 1955 (“Act 265”) only provides social security protection to the unemployed workers in private sector whose wages do not exceed RM2,000 or employees in West Malaysia with specific jobs as described in the First Schedule of the Act 265. Furthermore, the Minister of Human Resources (“Minister”) may provide termination benefits, lay-off benefits and retirement benefits to the employees by regulations made under the Act 265. For instance, Employment (Termination and Lay-Off Benefits) Regulations 1980 (“Regulation 1980”) stipulates that an employer should pay termination or lay-off benefits to an employee who has been employed under a continuous contract of service for the past 12 months. However, both the Act 265 and Regulation 1980 only provide a minimum amount of termination or lay-off benefits payment to the employees. The existing laws neither encourage the employees to actively seek re-employment nor strengthen their employability in the labour market. Hence, the Employment Insurance System Act 2017 (“Act”), passed by the Dewan Rakyat on 25 October 2017, the Dewan Negara on 18 December 2017, and came into force on 1 January 2018, is a timely yet comprehensive law to protect the workers in Malaysia. The Act sets out provisions to provide certain benefits and a re-employment placement programme for insured persons in the event of loss of employment which will promote active labour market policies. This article provides an overview of the Act.
There are situations where one party would unfairly impose an exclusion clause that protects them from any liability whatsoever in the event of a breach of contract
A recent Federal Court Appeal of a suit between an established local bank and two of its customers is generating slightly more than the usual interest in the normally staid realm of Contract Law. That the case should involve an exclusion clause is hardly surprising given the backdrop of judges’ often unfavourable views of the role of such clauses in a contract. Legal arguments involving the principles of fundamental breach and the contra proferentum rule have been accepted by judges to restrict the one-sided and arguably, often unfair application, of widely drafted exclusion clauses. Lord Diplock in his judgement in the case of Photo Production Ltd v Securicor Transport Ltd said “…the reports are full of cases in which what would appear to be very strained constructions have been placed upon exclusion clauses,…”
Notwithstanding such adverse perception, exclusion or limitation clauses can be regarded in one of two ways. On one hand, such a clause is often considered to be a means for the parties to apportion liability under the contract, and is said to reflect the intention of the parties in doing so. On the other hand, such clauses are often inserted into a contract by the stronger party to exclude all possible liabilities under the contract on the part of that party. In many of the latter cases, it would appear that the innocent party would have no recourse for the losses suffered caused by the breach or other wrongful conduct of the other party by virtue of the wide exclusion clause in the respective contract.
In cases involving many consumer contracts, the Parliaments in Malaysia and the UK have legislated to provide a measure of protection to consumers. In Malaysia, Section 24 of the Consumer Protection Act 1999 gives protection to consumers who “acquire[s] goods or services of a kind ordinarily acquired for personal, domestic or household purpose, use or consumption…” However, it is often in those cases involving contracts not governed by such legislations, and where it appears that one party had unfairly imposed an exclusion clause that basically protects them from any liability whatsoever in the event of a breach of contract, that invites strict scrutiny from the courts.
The recent Court of Appeal decision in Anthony Lawrence Bourke And Another v CIMB Bank Berhad (“Bourkes v CIMB”) would appear to be such a case, whereby the court may have felt compelled to intervene judiciously in the application of such an exclusion clause.
ADR is popular in many jurisdictions no longer as an alternative form of dispute resolution, but rather as a primary mechanism.
I. The Development of ADR – A Brief Overview
Alternative Dispute Resolution (‘ADR’) is evidently not a new phenomenon. Societies have been developing informal and non-adversarial processes for centuries to resolve disputes. As a matter of fact, archaeologists have discovered evidence that ADR processes were used in ancient civilisations particularly in Egypt, Mesopotamia and Assyria. To-date, one of the earliest recorded mediations occurred over four thousand years ago in the ancient society of Mesopotamia. It was discovered that the then Sumerian ruler used a mediation process to help avert war and subsequently developed an agreement in a dispute over land.
There are many examples where ADR processes were developed in traditional societies as a mechanism to resolve disputes. The Bushmen of Kalahari, native people of Namibia and Botswana, developed sophisticated systems in order to resolve disputes’ arising that avoids physical harm and the courts. William Ury held that “when a serious problem comes up everyone sits down – all the men, all the women – and they talk, and they talk and they talk. Each person has a chance to have his or her say. It may take two or three days. This open and inclusive process continues until the dispute is literally talked out.” In China, since the Western Zhou Dynasty approximately two thousand years ago, the post of a mediator has been included in all governmental administration. Today, it is estimated that there are 950,000 mediation committees in China, with at least six million mediators. The said committees handle between ten to twenty million cases annually, ranging from family disputes to minor property disputes. Similarly, in India there has also been a long tradition of using ADR as a tool to resolve disputes. The most adopted and used method of dispute resolution, ‘panchayat’, came into existence somewhat 2500 years ago and was widely used to resolve both commercial and non-commercial disputes. In the western world, the development of ADR can be traced to the ancient Greeks. A public arbitrator position was introduced by the city-state around 400 B.C as the Athenian courts became overcrowded.
Today, ADR is popular in many jurisdictions no longer as an alternative form of dispute resolution, but rather as a primary mechanism. ADR has flourished to the point where it has been suggested that the adjective should be dropped altogether and that ‘dispute resolution’ should be used to describe the modern range of dispute resolution methods and choices. The two most common forms of ADR in this era consist of mediation and arbitration.
On 23rd November 2017, Quanta RegTech Capital (QRC) in collaboration with Infinity Blockchain Labs (IBL) embarked on the Asian leg of its RegTech World Tour in Ho Chin Minh City to acquaint the global community with RegTech. The kick-off event was attended by representatives from varying sectors but principally consisted of those from the corporate and legal sector. The session was allocated to four speakers who spoke about RegTech from different perspectives, all of which are highlighted in this report.
I. WHAT IS REGTECH?
Adam Vaziri, co-founder of Diacle aptly began with a short introduction to RegTech. ‘RegTech’ or regulatory technology, was described as being the use of technology to facilitate compliance in regulated industries. RegTech not only addresses the needs of regulated businesses, but also the needs of regulators or governmental agencies as well.
The advent of FinTech resulted from the acknowledgement of the shortfalls in the traditional risk assessment regime in the financial industry, which was particularly palpable after the 2008 Global Financial Crisis.
Unlike in Fintech, there is no pivotal event where the introduction of RegTech is concerned. However, its introduction is also the consequence of a realisation that the existing systems in regulatory compliance are inadequate and can be much improved.
After receiving Royal Assent on 9 October 2017, the Law Reform (Marriage and Divorce) (Amendment) Act 2017 still awaits its date of commencement in the Federal Gazette.
Unilateral conversion of minors is not a rare phenomenon in a multi-religious nation like Malaysia. Over the recent years, news regarding the conversion of children to Islam by their converted parent without the consent of the other parent has caught the attention of the public. Although a few high-profile cases were brought before the courts in the past, there is yet a solid solution to this increasingly frequent controversy as of now.
In 2007, Subashini lost the custody of her elder son to her Muslim-convert husband, who converted the child without her knowledge, when the apex court ruled that either party to a marriage has the right to convert a child to Islam. Almost a decade later, S Deepa found herself in a similar predicament, when the Federal Court followed the 2007 landmark decision. The series of unilateral conversion cases, however, did not stop there.
Following the more recent case of Indira Gandhi, the longstanding controversy over the unilateral conversion of minors to Islam finally prompted the government to amend the Law Reform (Marriage and Divorce) Act 1976. Aiming to also settle disputes regarding the legal rights of the both converting and non-converting spouses and the custody of children, Datuk Seri Azalina Othman Said, Minister in the Prime Minister’s Department, tabled the Law Reform (Marriage and Divorce) (Amendment) Bill 2016 in November 2016. With five amendments and two new provisions, the long-anticipated bill is undoubtedly a breakthrough in the Malaysian family law.
Professor Emeritus Datuk Dr Shad Saleem Faruqi is the holder of the Tunku Abdul Rahman Foundation Chair
I. CONCEPT OF A LEGAL SYSTEM
A legal system refers to the overall legal regime of a country. It provides institutions, principles, rules and methods for regulating the relationship between law and society. It describes law’s connection with authority and with morality.
It describes the sources from which the law springs. It provides the procedures and methods for making law and resolving disputes. It encompasses the institutions, principles and procedures for the exercise of power and the limits thereon. It includes a set of laws and the manner in which the laws are interpreted and enforced.
It outlines the rights, responsibilities, and duties of citizens towards each other and towards the state. It provides for the imposition of punishments.
It provides for the classification of laws into various categories (civil law and criminal law, public law and private law, procedural law and substantive law, the law of tort and law of contract) and the differences and similarities between these categories.
Over the millennium, the world has known many types of legal systems. The oldest were built on custom and religion. In modern times, it is believed that there are six primary categories of legal systems; civil law systems, common law systems, religious systems, customary systems and supranational systems, and mixtures of the five. The choice of one or the other is affected by history, politics, and social traditions.