INSAF - The Journal of the Malaysian Bar

THE DISCRETIONARY POWERS OF THE ATTORNEY GENERAL : IS THE AG ANSWERABLE TO THE PUBLIC?

Fri, 09 Feb 2024 00:00:00 +0000

This article examines the nature and extent of discretionary powers of the Attorney-General. Through legal doctrinal methodology, the article explores the question of whether the execution of such powers can be subject to public scrutiny. With reference to provisions of the Federal Constitution and several decided cases, the article finds that the Attorney-General’s discretion cannot be completely unrestrained and can be called to question by the courts when such discretion is employed improperly. Additionally, it is recommended that the Attorney-General must be accountable to Parliament and not the Executive.

Keywords: Attorney-General, discretionary powers, accountability

SWOT ANALYSIS ON CHILD SEXUAL ABUSE FRAMEWORK IN MALAYSIA

Mahmud Abdul Jumaat — Fri, 09 Feb 2024 00:00:00 +0000

The Malaysian Sexual Offences Against Children Act 2017 provides an opportunity to strengthen the protection of children from sexual abuse and ensure that perpetrators are held accountable for their actions. The Act establishes a legal framework for addressing sexual offences against children and provides for the prosecution of offenders, as well as the protection and support of child victims. Despite the legislative novelty, this paper identifies significant weaknesses in the Act that need to be addressed to ensure that it is effective in protecting children and ensuring perpetrators’ accountability. Using a SWOT analysis technique, this paper provides insight into the strengths and weaknesses of Act 792. The result is expected to benefit lawyers, academia, legislature, and civil society on differential perspectives in interaction with the Act.

Keywords: child sexual abuse, SWOT Analysis, Malaysia

WHERE MALAYSIA STANDS IN THE HUMAN TRAFFICKING AND MIGRANT SMUGGLING ORDEAL

Arziah binti Mohamed Apandi — Fri, 09 Feb 2024 00:00:00 +0000

The country’s single piece of legislation to combat the heinous practise of trafficking in people and smuggling of migrants, namely, the Anti- trafficking in Persons and Smuggling of Migrants 2007 (“the Act”), is not completely tailored to prevent the demoralising misconduct. Although after its inception, the Act was amended in 2010, 2015 and 2022, Malaysia remains in the lower position as one of the countries with poor progress in obstructing the people trafficking and migrant smuggling conducts. The Top Glove case exposed the company’s deplorable working conditions and poor hygiene living accommodation of its factory workers whilst the Sime Darby case brought embarrassment with below-par living conditions of its plantation workers all of whom are predominantly migrants. While these companies were internationally castigated, the local laws remain unsettled in many aspects, particularly on the definition of forced labour and whether there is trafficking in those case scenarios. Under the Act, forced labour is undefined making prosecution a difficult task. Many issues have arisen recently like the Indonesian maid issue and foreign worker inflow where Malaysia is keenly observed by the global economic players on whether we can tackle this problem of trafficking and smuggling of migrants. The US Government maintained Malaysia in its Tier 3 classification from 2018 until 2022 but has now classified Malaysia in the Tier 2 Watch List category in 2023. Considering the impact of COVID-19 pandemic, Malaysia was considered to have made some significant progress in its anti-trafficking policy. But, Malaysia still has not resolved its old problems especially in failing to sufficiently prosecute labour traffickers and failing to achieve a systematic implementation of standard procedures across the region to proactively identify victims during law enforcement raids. Fresh efforts by the new government saw that in early 2023, immigration officers were charged in court for alleged smuggling of migrant syndicates. But, is that enough? Surely if Malaysia fails to tackle this problem, foreign investors will shy away from this country thus worsening the economic condition that needs urgent revival after the COVID-19 pandemic. Malaysia must put a fast but hard push in its enforcement and preventative measures to stop the crimes of trafficking in people and smuggling of migrants. The beautiful façade of Malaysia must be reinstated so that people across the globe are attracted to us once again and not be put off by our lackadaisical attitude to eradicate these inhumane practices.

Keywords: Human Trafficking, Migrant Smuggling, Malaysia

THE THE IMPLEMENTATION OF RENEWABLE ENERGY IN MALAYSIA IN THE CONTEXT OF GLOBAL INITIATIVES AND TARGETS

John Vercoe — Fri, 09 Feb 2024 00:00:00 +0000

This article discusses Malaysian initiatives in implementing RE and how far Malaysia has reached in terms of pledges made under the Paris Agreement and recently at COP27. Employing legal doctrinal and comparative methodologies, this article observes that apart from Malaysia’s initiatives for the nation’s transition to RE, many other global initiatives or assistance are provided by other countries to help offer strategies and financial support for Malaysia to accelerate its transition to RE and achieve its climate targets as outlined in the roadmap designed by Malaysia’s Sustainable Energy Development Authority (SEDA). Achieving climate targets, such as net-zero emissions and 70% RE generation by 2050, requires more than just internal implementation alone. It is a nationwide collaborative effort dependent on constant collaboration with other countries and international organisations. Hence, this article discusses how the United Kingdom has played a role in actively encouraging other countries, especially Malaysia’s own transition. It concludes by identifying several factors that would enhance the effectiveness of initiatives and programmes to achieve Malaysia’s climate targets.

Keywords: renewable energy, global initiatives, climate targets, Malaysia

ADDRESSING THE REFUGEE CRISIS THROUGH THE LENS OF ISLAMIC INTERNATIONAL LAW

Mohammed R. M. Elshobake, Amirul Syafiq bin Yusri — Fri, 09 Feb 2024 00:00:00 +0000

This paper aims to examine the current refugee crisis through the lens of Islamic international law. Refugee crisis is one of the most urgent humanitarian challenges of our time and it involves the majority of Muslim nations worldwide. Critical analysis and library research are used to uncover the issue. It is found that Islamic principles like human dignity (Karamah), preservation of life (Hifz Al-Nafs), and communal responsibility (Ukhuwwah) are align to the modern international refugee law in its ethical, moral and humane treatment of refugees and the importance of global cooperation to curb the issue especially among the Muslim countries. The paper also discusses the political, social, and economic impact of refugees in the host countries and relevant Islamic principles to combat them, such as balance and equity (Mizan, Wasatiyyah), shared responsibility (Takaful), implementing gradual changes (Tadarruj), and prioritising security and welfare (Maslahah). It is concluded that Islamic principles can enrich and complement the modern international refugee law to develop kinder, fairer, and more sustainable answers to the global refugee challenge. Ultimately, the paper seeks to preserve the lives and well-being of refugees and to address their issue from the perspective of Islamic international law.

Keywords: Refugee crisis, Islamic principles, Maqāṣid Syariah, Islamic International Law.

THE WRITE-OFFS OF CREDIT SUISSE’S AT1 BONDS – WHERE DO WE STAND AND WHAT ARE THE OPTIONS FOR MALAYSIAN INVESTORS?

Harald Sippel — Fri, 09 Feb 2024 00:00:00 +0000

no abstract

List of Reviewers for Volume 40 (1) 2023

INSAF Journal — Fri, 09 Feb 2024 12:48:23 +0000