Vol 23 (S1), 2019


Regular Articles

A Study on The Conditions and Requirements of Nomination for Takaful Participant
Nurul Farhana Khalid, Ruzian Markom, Universiti Kebangsaan Malaysia
Page 1-14   |      Download PDF   |   ABSTRACT PREVIEW

Abstract

Nomination is essential in the estate planning. There are a few institutions that offer this mechanism in assisting heirs to accelerate the claiming process of their deceased’s estate, including the Takaful benefits. As a Takaful participant, he is responsible to appoint a nominee who is responsible for the fund distribution that is claimed by the entitled legal heirs in accordance with the Islamic law of inheritance (faraid). This article examined the nomination concept in Takaful system and its implication in Islamic law perspective and the Islamic Financial Services Act (IFSA) 2013, including the conditions and requirements of a nominee. This qualitative study used the doctrinal legal research to analyse the implication of nomination from the Islamic perspective and under the provisions of IFSA 2013 in relation to Takaful. The study found that the nomination gave rise to two consequences when the financial consumer died before maturity of the Takaful plan. The nominee would either be an executor or trustee and he is required to distribute the Takaful benefits to other heirs according to faraid or to distribute the benefit to a single or several beneficiaries as hibah recipient. However, the law is silent on the condition and requirement of a nominee. Therefore, it is recommended that the relevant law should be reviewed on the conditions and requirements of a nominee. 

Keywords:
Nomination, Takaful participant, Islamic Financial Services Act 2013, Conditions, Requirements of nominee

Family Disputes in Administration of Estates: Analysis on Mediation as Effective Dispute Resolution Mechanism in Malaysia
Muhammad Amrullah bin Drs Nasrul, Universiti Malaya
Muhamad Helmi Md Said, Universiti Kebangsaan Malaysia
Nora Abdul Hakand, Wan Noraini Mohd Salim, International Islamic University Malaysia

Page 15-32   |      Download PDF   |   ABSTRACT PREVIEW

Abstract

A family dispute is one of the issues that occur in the administration of the deceased’s estate. Such dispute may happen at any stage in estate administration, ranging from the application of letters of representation until the distribution of the deceased’s asset. The occurrence of family dispute tends to affect the administration adversely and may lead to delay in the distribution which at the same time rendered the process incomplete. However, despite the seriousness of family dispute in estate administration, there is no specific method in resolving the problem apart from the litigation process. Litigation is less preferred in this case due to its inability to address the emotional grief suffered by the parties. Plus, it is time-consuming and has a relatively expensive cost. Mediation, on the other hand, is seen as a potential dispute resolution mechanism thanks to its effective method in addressing the core issues in a family dispute. This paper addresses the overview of a family dispute as well as analyses mediation in addressing and resolving the issue in the administration of a family estate. The study undertakes a library-based study as a selected research method through the analysis of selected materials including journal articles, textbooks, statutes as well as interview method. Findings from this paper indicate that mediation excels in resolving family disputes due to its ability to relieve the emotional distress suffered mainly by the beneficiaries. It is suggested that the administrative bodies primarily, should start to take the initiative in introducing mediation as an effort to improve the process of estate administration in Malaysia. 

Keywords:
Administrative bodies, Mediation, Estate administration, Delay

Health Supplement and Product Liability in Malaysia: A Call for Reform
Zeti Zuryani Mohd Zakuan, Universiti Teknologi MARA
Rahmah Ismail
, Universiti Kebangsaan Malaysia
Page 33-55   |      Download PDF   |   ABSTRACT PREVIEW

Abstract

The health supplement market in Malaysia is on the rise. This is due to high demand of health supplements by Malaysian consumers. More and more consumers are taking charge of their health and seeking alternatives from medicine. They no longer seek medical advice when they are having health issues. To them, they are responsible towards their own health and will not let others take charge of their health. These consumers get information regarding their health through the internet. They will purchase health supplements which they think are suitable to solve their health issues. However, questions arise as to whether consumers are protected if the health supplement consumed is defective and the consumers suffer damage or injury due to the defect. This paper aims to provide some information regarding health supplements and the product liability law which is supposed to protect the consumer in an event where the consumer suffers injury due to a defective health supplement. It is submitted that product liability is not able to provide protection to consumers in issues relating to health supplements in Malaysia. 

Keywords:
Consumer protection, Health supplement, Product liability, Consumer Protection Act 1999

Intellectual Property Protection for SMEs in Malaysia: Issues and Challenges
Nazura Abdul Manap, Haniff Ahamat, Universiti Kebangsaan Malaysia
Page 56-72   |      Download PDF   |   ABSTRACT PREVIEW

Abstract

In most jurisdictions in the world, Intellectual Property (IP) related economy is often driven by small and medium-sized enterprises (SMEs). However, due to the lack of awareness of IP, newly invented products such as trade-names, new technology, know-how and other creative works are not always fully deployed by the SMEs. These circumstances will lead to a major economic harm as the superior opponents in the market will benefit from this situation by exploiting the inventions without having to remunerate the inventor or creator in the form of financial outcome. Thus, it is imperative to safeguard the ample protection of IP invention to disallow possible infringement, and at the same time profiting by alleviating the IP assets into a meaningful market value. The proper IP ecosystem will enable SMEs to exploit the full potential of their capacity which usually lead to profit-making that encourage the creation of new inventions. Hence, it is the objective of this paper to discuss the position of small-medium enterprises (SMEs) in Malaysia; to analyse the development of Intellectual Property rights amongst SMEs in Malaysia; and to identify the challenges and how to overcome the problems in managing IP amongst SMEs in Malaysia. This study is a qualitative research and analyses data using content and critical analysis. The result of this study indicates that the significant value in the intangible assets of Intellectual Property is pertinent in improving the worth of SME business entities, thus it is very important for the SMEs to strategize comprehensively in exploiting their IP assets. 

Keywords:
Intellectual property, SMEs, Malaysia National Intellectual Property Policy, SME Corporation Malaysia

Reviving Shareholders’ Participation in Companies’ Decision-Making in Malaysia
Nor Hayati Abdul Samat, Universiti Utara Malaysia
Hasani Mohd. Ali, Universiti Kebangsaan Malaysia
Page 73-88   |      Download PDF   |   ABSTRACT PREVIEW

Abstract

In theory, a general meeting of shareholders and a meeting of the board of directors are equal in terms of their roles and significance for a company. After the occurrence of a series of corporate collapses, shareholders are urged to be more active in providing the company’s management with a check and balance mechanism. By employing a traditional approach of legal research, this paper discusses two continuous efforts aimed at enhancing shareholders’ opportunity to participate in the company’s decision-making. This paper finds that in reality, shareholders have always been overshadowed by company directors in terms of participation in the company’s decision-making. There is also lack of interest among shareholders to participate in the company’s general meetings. This paper recommends for the issues to be approached by addressing two possible avenues. First, by strengthening the legal framework in respect of general meetings especially by resolving legal issues relating to electronic communication, proxy voting, and management review. The second avenue is through shareholders’ activism and empowering minority shareholders. This discussion is based on the Malaysian corporate landscape. 

Keywords:
Electronic meetings, Management review, Minority shareholders

Self-Determination: Exercising Autonomous Rights Through the Orang Asli Co-Operative in Malaysia
Rohaida Nordin, Sharifah Shuzaida Bt Saedin, Universiti Kebangsaan Malaysia
Page 89-106 |      Download PDF   |   ABSTRACT PREVIEW

Abstract

Autonomy is one of the important aspects of self-determination of indigenous peoples. Although self-determination is internationally recognized for the indigenous peoples including in Malaysia, self-determination is under the authority of governments in many states and this right is limited to the economic, social, cultural and resource dimensions compared to political and civil dimensions especially for the indigenous peoples in Peninsular Malaysia. In the context of co-operatives, autonomy is one of the principles to be implemented to ensure transparency in its administration. It is a principle that must be followed by all co-operatives around the world including indigenous co-operatives which is known as the Orang Asli co-operative. Therefore, this article discusses the definition of indigenous peoples and co-operatives in Malaysia. The discussion in this article focused on the scope of self-determination of indigenous peoples in Peninsular Malaysia. It also discusses how self-determination in the context of autonomy is exercised through the Orang Asli co-operatives. 

Keywords:
Autonomy, Self-determination, Indigenous peoples, Orang Asli, Orang Asli co-operatives

Sex Selection: An Overview of Its Potential Harms and Benefits to Family Welfare
Haniwarda Yaakob, Universiti Kebangsaan Malaysia
Page 107-123   |      Download PDF   |   ABSTRACT PREVIEW

Abstract

Choosing the sex of an unborn child is not a new practice. Since ancient times, couples have attempted to conceive a child of their preferred sex using various traditional methods such as food consumption, sexual positions and many more. The advent of modern medical technologies such as sperm sorting, prenatal diagnosis, preimplantation genetic diagnosis and possibly genetic engineering have now increased the likelihood of parents fulfilling their dream of having a child of the desired sex. This practice is, nonetheless, not left without ethical scrutiny, where several criticisms have been advocated against the custom. Despite the potential ethical impediments, sex selection is arguably one of the possible mechanisms that may improve family economics and welfare. This is achievable by allowing sex selection for family balancing, which in turn protects couples from having more children than they actually desire. This will consequently stabilise if not improve family economics by avoiding unnecessary financial burden from having to support a large family. Additionally, sex selection is also important in cultural settings where sons are depended upon for financial support. This is the main thesis of this paper where the benefit of sex selection to improve the economic welfare of families is promoted. It is concluded that a blanket prohibition on the use of modern methods of sex selection is unjustified as the rationale behind sex selection should be assessed on a case-to-case basis depending on the needs of each family. 

Keywords:
Sex selection, Family balancing, Family economics, Family welfare

Society and Commercial Welfare: Product Information Centre – Relevant Aspects for Consideration
Sakina Shaik Ahmad Yusoff, Suzanna Mohamed Isa, Universiti Kebangsaan Malaysia
Farzaneh Akrami, Islamic Azad University

Page 124- 137   |      Download PDF   |   ABSTRACT PREVIEW

Abstract

One of the most important signs of a healthy community is the existence of healthy economy and a good platform for this. The concern about profitability of business and economy on the one hand, and the prevention of inactivity, abuse and fraud in this field on the other, are two of the most important needs of a prosperous and capable society. Creating prosperity for both the consumer and producer is one of the pillars of such community. Today, in line with this fact, the concept of ‘freedom of information’ is created. The combination of the indispensable right of the buyer to know about the subject of the contract and the concept of freedom of information has led to the creation of a new trend among some governments and companies to establish product information centres. Concepts of consumer welfare, consumer protection and competition between the competitors in the market have considerable role and effect on the creation of such centres. A product information centre is a suitable platform to obtain such goals. In creating such a centre, there are many different issues from a variety of aspects that ought to be considered. As such, through a doctrinal type of research, this article aims to study some aspects relevant to a product information centre from different angles. 

Keywords:
Product information centre, Consumer protection, Consumer welfare, Competition, Information

Sulh as an Alternative Dispute Resolution Mechanism for Islamic Banking and Financial Disputes in Malaysia
Nur Khalidah Dahlan, Universiti Kebangsaan Malaysia
Page 138-150   |      Download PDF   |   ABSTRACT PREVIEW

Abstract

Many disputes, probably the majority, are never resolved but are only allowed by the unilateral action of the party exercising power. A key concern in such civil cases is to determine how satisfied clients feel with the third parties, which are the lawyers and judges with whom they had dealt with and the various dispute resolution forums used to settle their problem. In view of the fact that the business society has come to regard arbitration as their favoured means of catering for dispute resolution, lawyers have given considerable thought to provide an appropriate legal setting within which arbitration can operate and allow trade and commerce to flourish. Alternative dispute resolution (ADR) is not new in the legal system, but it has received tremendous impetus as means of dealing with the huge increase in different types of disputes over a range of matters. Even though ADR is still not practised as a whole, most civil cases now recognize that it is wrong to regard formal adjudication as the only norm for dispute resolution. Hence, this paper suggests that the Islamic ADR method should also be adopted in Islamic finance disputes. It is a loss for everyone if we do not explore the effectiveness and uniqueness of the Islamic ADR due to the Islamic globalisation worldwide. This is to create more opportunities in the ADR field to develop more effective settlements for Islamic finance disputes. 

Keywords:
Alternative dispute resolution, Sulh, Islamic finance

The Doctrine of Privity and Consumerism: To Be or Not To Be
Hazlina Shaik Md Noor Alam, Universiti Kebangsaan Malaysia
Page 151-1
61   |      Download PDF   |   ABSTRACT PREVIEW

Abstract

A person can only be sued in contract if there is a contract between him and the person who is suing him. Therefore, if a manufacturer who sells a product to a retailer, who then sells it to a consumer, who is then injured by the product, the consumer could sue the retailer in contract because of the contract of sale between the retailer and the consumer. The consumer could not sue the manufacturer in contract, because there is no contract between the consumer and the manufacturer. This doctrine is known as privity of contract. On the other hand, if the consumer is able to successfully sue the retailer in contract, the retailer may then be able to sue the manufacturer on the basis of the contract of sale between the retailer and the manufacturer. In this way, a chain of liability is established, as each person in the chain can only be sued by those whom he has had a contract with, and likewise, can only sue those whom he has had a contract with. 

Keywords:
Contract, Consumer, Liability, Retail, Privity

Debtor Protection Within Bankruptcy Proceeding in Malaysia and Singapore: A Comparative Analysis
Lim Jia Min, Rohaida Nordin, Universiti Kebangsaan Malaysia
Page 162- 193
  |      Download PDF   |   ABSTRACT PREVIEW

Abstract

Bankruptcy means the state of being completely lacking in a particular quality or value and it is normally referred to as financial ruin. The purpose of this paper is to examine, compare, and contrast the bankruptcy law in Malaysia and Singapore which are provided in Insolvency Act 1967 (Act 360) and Bankruptcy Act (Chapter 20), respectively. Both bankruptcy regimes have been amended recently, in 2017 and 2015. The analysis in this paper is centred on the issue as to what extent the existing laws provide due protection to the debtor as much as to the creditor. Using doctrinal comparative analysis, the discussion starts with the procedural flow of the bankruptcy proceeding and the analysis of new amendment in each regime and ends with the comparison between the amendment of the law in each jurisdiction. Generally, Malaysian amendment improves the bankruptcy law to a great extent in term of demand for justice and benefit for both the debtor and creditor. On the other hand, Singapore bankruptcy law is undergoing reformation all the time, to keep pace with the social and economic developments in the country. Both countries show great enthusiasm to keep on reforming their laws to suit every era’s need. 

Keywords:
Debtor protection, Bankruptcy, Comparative analysis, Malaysia, Singapore