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UUM Journal of Legal Studies (UUMJLS) Vol. 10(2), July 2019

Nor Azlina Mohd Noor & Ahmad Shamsul Abd Aziz
 
Mohamad Fateh Labanieh, Mohammad Azam Hussain & Nazli Mahdzir
 
Siti Khadijah Mohd Khair, Nuarrual Hilal Md Dahlan & Harlida Wahab
 
Ratnaria Wahid, Norafidah Ismail, Bakri Mat & Khaliza Saidin
 
Alias Azhar & Mohd Zakhiri Md.Nor
 
Osama Ismail Mohammad Amayreh, Izura Masdina Mohamad Zakri, Pardis Moslemzadeh Tehrani & Yousef Mohammad Shandi
 
Mehmet Emin Bilge, Rauf Karasu & Merve Aysegul Kulular Ibrahim
 

 
‘STANDING’ ROOM ONLY: A VINTAGE ISSUE IN ESTATE ADMINISTRATION CLAIMS
1Nor Azlina Mohd Noor & 2Ahmad Shamsul Abd Aziz
1&2School of Law, College of Law, Government and International Studies, Universiti Utara Malaysia, Malaysia
1Corresponding author: norazlyna@uum.edu.my
 
ABSTRACT
The doctrine of standing or locus standi governs the rule of competency of a person that submits their grievances to the court. A beneficiary, usually an incompetent plaintiff due to the lack of locus standi, is not a qualified litigant to seek the court’s intervention in administering the deceased’s estate. The prevailing legal position in Malaysia is that the estate beneficiaries are not authorised to bring forth any action against any party on behalf of the estate, until a sealed order of the letter of representation has been presented. The fundamental issue in question is whether the doctrine of standing has denied the inherent right of beneficiaries to exploit the deceased’s estate. Hence, in light of this scenario, this paper aims to analyse the tendency of the court on deciding cases that relates to the standing of beneficiaries who are not personal representatives, when they submit claims on behalf of the estate. In this context, this paper uses the content analysis method to analyse past concluded cases and relevant legal provisions. This paper concludes that the Federal Court had whittled down the strict rule that beneficiaries should first obtain the grant of letters of representations for deceased’s estates by providing the locus standi to submit any legal claims on behalf of the estates. Therefore, by allowing the claims made by the beneficiaries, the court has acknowledged the existence of special circumstances that can be applied to exceptional cases.
 
Keywords: Locus standi and standing, Right of estate beneficiaries, Estate administration.
 
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ARBITRATION AS A MECHANISM TO RESOLVE ISLAMIC BANKING DISPUTES IN MALAYSIA: CHALLENGES AND DRAWBACKS
1Mohamad Fateh Labanieh, 2Mohammad Azam Hussain & 3Nazli Mahdzir
1,2&3School of Law, College of Law, Government and International Studies, Universiti Utara Malaysia, Malaysia
E-mail: fatih.labanie@gmail.comhmazam@uum.edu.my; mnazli@uum.edu.my
 
ABSTRACT
Malaysia has shown tremendous progress in the arena of Islamic banking and the finance industry, and has become an essential Islamic financial hub within the region. The comprehensive legal framework consisting of legislation and dispute resolution mechanisms have been crucial elements that ensured the robust development of the industry. The court system and arbitration are two significant platforms for the settlement of Islamic banking disputes that are brought before them. However, the court system has been widely favoured compared to the arbitration, even though both approaches have almost identical roles. Therefore, one question arises; why is arbitration less preferred compared to the court system? By using legal research methods, this article seeks to analyse the challenges and drawbacks that faces the current arbitration framework when dealing with Islamic banking disputes. This study suggests that the Malaysian arbitration framework faces several challenges such as, issues regarding high-cost, high-formality, less-speed, and the uncertainties when referring any Shariah matters to the Shariah Advisory Council. This article suggests that some improvements should be made by the relevant authorities and establish the necessary statutory amendments to strengthen the role of arbitration in Malaysia as a complementary forum to the court system in settling Islamic financial disputes.
 
Keywords: Arbitration, Court, Islamic banking and finance, Shariah law, Shariah advisory council.

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KONSEP LIABILITI DAN PEMBERIAN PAMPASAN GANTI RUGI DALAM KEMALANGAN JALAN RAYA MENURUT PERUNDANGAN ISLAM
1Siti Khadijah Mohd Khair, 2Nuarrual Hilal Md Dahlan & 3Harlida Wahab
1,2&3School of Law, College of Law, Government and International Studies, Universiti Utara Malaysia, Malaysia
 
ABSTRAK
Aspek liabiliti dan pemberian pampasan ganti rugi merupakan perkara utama dalam membincangkan isu kesalahan kecuaian di dalam kes kemalangan jalan raya. Artikel ini bertujuan untuk menganalisa konsep liabiliti dalam kemalangan jalan raya menurut perundangan Islam dengan memfokuskan kepada kesalahan kecuaian dengan menggunakan pendekatan kualitatif. Dhaman atau denda ganti rugi dalam kajian ini akan menekankan prinsip khusus dan pendekatan ke atas aspek perlanggaran di jalan raya di dalam perundangan Islam. Kajian perpustakaan digunakan untuk liabiliti di dalam kes-kes perlanggaran berteraskan Al¬Quran, sunnah, ijma’ dan qiyas. Seterusnya ia menghubungkaitkan pemakaian konsep ini dengan kesalahan kecuaian menyebabkan perlanggaran di dalam kemalangan jalan raya. Dapatan kajian menunjukkan prinsip ‘penyebab’ dalam perundangan Islam amat jelas pemakaian dan perkaitannya di dalam menentukan liabiliti sama ada kes perlanggaran berlaku di daratan, lautan atau di ruang udara. Konsep liabiliti turut terpakai bagi menentukan tanggungan kecuaian dan pemberian pampasan ganti rugi oleh pihak-pihak yang terlibat dalam membina struktur jalan, jambatan, terowong dan lain-lain. Konsep ini juga berhubung dengan jalan raya sekiranya tanggungan bukan pada pemandu yang tidak bersalah dan tidak cuai.
 
Kata kunci: Liabiliti, Pampasan ganti rugi, Kecuaian, Perlanggaran, Perundangan Islam.
 
ABSTRACT
The aspects of liability and compensation have been key points when discussing the issue of negligence in road traffic accidents. This article aims to analyze the concept of liability in road accidents, in accordance to Islamic law, that focuses on negligence by using a qualitative approach. The application of ‘dhaman’ or the compensation of damages, is a broad concept that will be examined in this study. Furthermore, this study will review the specific principles and approaches on collisions of road traffic within the Islamic law. The methodology carried out employs the use of library study to analyze the concept of liability in cases of collisions, based on the Al-Quran, sunnah, ijma’ and qiyas with regards to the application of ‘dhaman’ on the negligence that have resulted in collisions from road accidents. The research outcome suggests that the ‘causal’ principle in Islamic law is very clear on its application and relevance in determining the liability of either a case of collision that has occurred on the road, ocean or in air. The concept of liability is also applied to determine the liability of negligence and awarded compensation by the parties that are involved in constructing the roads, bridges, tunnels and other structures that are associated with the road, if the liability does not fall upon the innocent and negligent drivers.
 
Keywords: Liability, Damages, Negligence, Collision, Islamic Law.

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SUSTAINING INNOVATIVE INFORMAL EDUCATION THROUGH INTELLECTUAL PROPERTY
1Ratnaria Wahid, 2Norafidah Ismail, 3Bakri Mat & 4Khaliza Saidin
1,2&3School of International Studies, College of Law, Government and International Studies, Universiti Utara Malaysia, Malaysia
4School of Education, College of Arts and Sciences, Universiti Utara Malaysia, Malaysia
1Corresponding author: ratnaria@uum.edu.my
 
 
ABSTRACT
Various technological innovations in ICT have brought about profound changes in major aspects of education, namely the content delivery or pedagogy, and the structure or management of both formal and informal education. Current technology has also offered the ease of copying or reusing new innovation without the need to acknowledge or compensate the creators. New books, and methods or techniques can easily be copied and digital resources may speedily be scanned and forwarded without much regard to the creators’ effort or investment. These actions would potentially discourage creations of new innovations that would be useful for public lifelong learning. Understanding cultural perspectives in the relationship between the intellectual property system and religious works is significant since it analyzes the intersection of belief and culture with the application of the law. This paper explored the development of creativity and innovation in an informal education setting, specifically looking at Quranic teaching offered by private enterprises in Malaysia as a case study. This paper examined (a) to what extent the Quranic teaching and learning have been innovatively developed and (b) to what extent developers of new innovation in Quranic teaching and learning deem it necessary to protect their creations under intellectual property rights protection. This study utilized qualitative research, by way of document analysis gathered from reports, brochures, journal articles, newspapers, the Internet, websites and mass media focusing on the creativity and innovation in informal religious education. It also conducted semi-structured interviews with several companies that used new innovative methods in teaching the Quran. The findings revealed that although intellectual property protection is seen as a valuable business asset which provides legal recognition and acts as quality control, intellectual property protection plays a minimal role in encouraging innovation or the spread of Quranic teaching.
 
Keywords: Intellectual property, Islam, Diversity, Public interest, Innovation.

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HIBAH IN THE ADMINISTRATION OF ISLAMIC PROPERTY: IJTIHADI ELEMENTS AND REALITY IN MALAYSIA
1Alias Azhar & 2Mohd Zakhiri Md.Nor
1&2School of Law, College of Law, Government and International Studies, Universiti Utara Malaysia, Malaysia
1Corresponding author: z.alias@uum.edu.my
 
 
ABSTRACT
A guarantee of successful life in this world and the hereafter would be achieved if Muslims live according to Islamic principles and teachings. Property and power that are entrusted to men by Allah SWT ought to be judiciously administered based on Islamic precepts. In brief, the administration of Islamic property aims to achieve hasanah (goodness) not only here but also the hereafter. Islam, as a complete way of life, has outlined the absolute guidance on property administration through a systematic law, i.e. the Islamic law of inheritance by means of wasiat (will), hibah (gift inter vivos) and waqf (charity). This article focused on the instrument of hibah under the administration of Islamic property and this includes comparisons of its principles and the reality of its application in Malaysia. Hibah is an element of the distribution of assets as drawn under the Islamic concept of managing property. Its concept, application and implementation need to be intensely understood. It has been occasionally observed that disputes would take place after the demise of the donor (the person who had exercised hibah) which complicates the distribution of the assets. Therefore, if this instrument is exercised differ entry between institutions but effectively and cautiously in line with the Islamic rules and principles, the rights of those entitled would be certainly safeguarded.
 
Keywords: Hibah, Property administration, Islamic inheritance law, Ijtihad.

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THE PRE-CONTRACTUAL OBLIGATION TO CONFIDENTIALITY OF INFORMATION IN THE PALESTINIAN CIVIL CODE DRAFT AND ITS ROLE IN MAINTAINING ECONOMIC CONTRACTUAL EQUILIBRIUM
1Osama Ismail Mohammad Amayreh, 2Izura Masdina Mohamad Zakri, 3Pardis Moslemzadeh Tehrani & 4Yousef Mohammad Shandi
1,2,3Faculty of Law, University of Malaya, Kuala Lumpur, Malaysia4Faculty of Law, Arab American University, Palestine
1Corresponding author: adv-osama@outlook.com
 
 
ABSTRACT
 
It is inconceivable that a person can be legally obliged to provide influential information to another party in order to contract freely and in an enlightened manner without requiring the latter to maintain the confidentiality of the exchanged information between the parties. In this context, Article 2.1.16 of the UNIDROIT principles of International Commercial Contracts and Article 1112-2 of the French Decree N 131-2016, etc. tend to apply the obligation to confidentiality of information at the pre-contracting phase as one of the most substantial principles governing this phase. However, the Palestinian legislature, having ignored enacting legal provisions obliging the parties to maintain the confidentiality of information in the pre-contracting phase, caused legislative deficiencies in the legislative remedies of the subject of confidentiality of information in the pre-contracting phase. A such, as a prime objective, this paper seeks to suggest orientations for the formulation of provisions for the obligation to maintain confidentiality of information in the Palestinian Civil Code Draft. Thus, an analytical comparative approach -with the French civil code- is used, while alluding briefly to German and English law, as to illustrate the Palestinian legislative deficiencies and the urgent need to legislate a legal article obligating the negotiating parties to maintain confidentiality of information, in order to contribute to the stability of civil and commercial transactions. In this regard, contractual equilibrium entails that the obligation to maintain confidentiality of information has its own independent essence from all the theories that the jurisprudence adopted as a legal basis for this obligation.
 

Keywords: Obligation to Confidentiality of Information, Economic Contractual Equilibrium, Palestinian Civil Code Draft, Pre-Contracting Phase, Secrecy of Information.

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RIGHT TO DEVELOPMENT AND EMOTIONAL EXHAUSTION: THE CASE OF HEALTHCARE INSTITUTIONS IN TURKEY
1Mehmet Emin Bilge, 2Rauf Karasu & 3Merve Aysegul Kulular Ibrahim
1School of Law, Social Sciences University of Ankara, Ankara, Turkey
2School of Law, Hacettepe University, Ankara, Turkey
3School of Law, Social Sciences University of Ankara, Ankara, Turkey
Visiting Associate, Law Faculty, Murdoch University, Perth, Australia
mehmetemin.bilge@asbu.edu.tr; raufkarasu@hacettepe.edu.tr; aysegul.kulular@asbu.edu.tr; merve.kulularibrahim@murdoch.edu.au
 
 
ABSTRACT
 
Right to development covers economic, social, cultural, and political development. Encouraging its subjects to participate actively in economic, social, cultural, and political development, right to development has significant impact on each person. Although it is wide in scope, person, being the central subject of development, this study focuses on right to development of health care professionals limited to doctors and nurses. This paper assessed right to development of health care staff, considering their work conditions and other demographic characteristics. For the implementation of regulations regarding to right to development, a significant fieldwork covering 20 health care institutions in three cities of Turkey was successfully completed. In this fieldwork, Maslach Burnout Inventory (MBI) was used for data collection. This article assessed emotional exhaustion of 185 health workers via SPSS program. The analyse found that education status and type of health care institution have effect on emotional exhaustion while other demographic characteristics such as work experience, annual income or the city were found non-effective on emotional exhaustion of health care professionals. Considering results of this fieldwork, the correlation of emotional exhaustion with the right to development was discussed. The findings reveal that the fear of aggression, lack of sufficient trainings, defamation or mobbing by senior doctors are potential adverse effects causing emotional exhaustion of health workers. To decrease emotional exhaustion caused by work, institutions are suggested to provide ongoing training or a sustainable method for decrement of patient burden and workload. Last but not least, as a sustainable solution, a national wide precise legal monitoring mechanism covering both public and private, ordinary and university health care institutions is strictly offered to be created for prevention of infringement on right to development of medical staff.
 
Keywords: Burnout, Emotional Exhaustion, Health Law, Right to Development.

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UUM Journal of Legal Studies
College of Law, Government and International Studies
06010 UUM Sintok, Kedah Darul Aman, Malaysia.

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